Damages for the 'Unwanted' Child: Time for a Rethink?
Medico-Legal Journal, Vol. 73, No. 4
Posted: 27 Dec 2005
If a healthy child born as a result of clinical negligence is a blessing which should not resound in child maintenance damages, can one create an exception for the birth of a disabled child? If so, should the law then permit a further exception for the disabled parent of a healthy child? And, even if the healthy child is not the proper subject-matter of damages, is this the same as saying that those who actively sought to avoid parenthood suffer no loss at all? The author considers the relevance to these issues of McFarlane v. Tayside Health Board (1999), Parkinson v. St. James' (2001) and Rees v. Darlington Memorial Hospital NHS Trust (2003). She concludes that the amount of judicial activity since McFarlane demonstrates the controversial and difficult (if not incoherent) nature of that decision, and suggests that the reproductive torts now require a serious rethink.
Keywords: wrongful conception, wrongful birth, McFarlane v. Tayside, Parkinson v. St. James', Rees v. Darlington, reproductive torts, reproduction, disability, health
JEL Classification: K00, K10, K13
Suggested Citation: Suggested Citation