Wrongful Birth

Introduction

‘Wrongful birth’ is a term used to describe a claim by parents that negligent advice or treatment deprived them of the choice of avoiding conception or of terminating a pregnancy. 1 The cause of action is negligence.

Such claims may include (but are not limited to):

  • the negligent performance of a sterilisation operation;
  • the failure to warn of the risks of failure of sterilisation procedures to prevent contraception;
  • negligent performance of abortion (resulting in continued pregnancy);
  • supplying defective contraceptives;
  • failing to advise about the risk of contraceptives failing to prevent pregnancy;
  • negligent assisted reproductive treatment that involves implantation of multiple embryos, resulting in multiple births, when the parents believed they were only going to have one child;
  • failure to diagnose a condition in the foetus that if known would have allowed the parent(s) to decide to lawfully terminate the pregnancy. 2

Note – Although called ‘wrongful birth’ it is not the birth that is really wrongful, it is the negligent acts or omissions of the health practitioner(s) that we are actually concerned with.

What compensation can parents claim in a wrongful birth case?

In Victoria, Western Australia, the Northern Territory, the ACT and Tasmania, parents may claim compensation for

* prenatal and postnatal medical expenses,
* the future costs of rearing the child, and
* pain and suffering for example, experienced during pregnancy and labour.

A claim does not rely upon a child being born with a disability.

In New South Wales, South Australia and Queensland, there are laws that limit what may be claimed when the child born is healthy and without disability.

Read more below!

The Law

High Court of Australia

Gavel - Wrongful Birth
Cattanach v Melchior (2003) 3

Cattanach v Melchior is a high court case heard in 2003 about a doctor who negligently performed a sterilisation operation, following which Mrs Melchior fell pregnant and gave birth to a healthy baby boy. The High Court held that the doctor was liable to pay the costs of rearing the child up to the age of 18, as well as costs up to and including the birth such as antenatal, obstetric and labour care, and compensation for pain and suffering. The focus was on the doctor’s negligence, and not the child’s birth.

The case of Cattanach remains the leading common law authority on ‘wrongful birth’ in Australia. The decision governs what may be claimed in states that do not have legislation on the matter. (State laws that modify what can be claimed are discussed below).

State and Territory Laws

Following the High Court decision in Cattanach, New South Wales, South Australia and Queensland, passed laws limiting what may be recovered in such claims in those States.

In Victoria, Western Australia, the Northern Territory, the ACT and Tasmania, Cattanach remains the legal authority. In these jurisdictions claims for compensation may reflect all categories named in Cattanach.

New South Wales

In New South Wales, the law prohibits claims in wrongful birth cases for

  • the costs associated with rearing or maintaining the child that the claimant has incurred or will incur in the future, or
  • any loss of earnings by the claimant while the claimant rears or maintains the child. 4

In other words, when the claim relates to negligence but the child that has been born is healthy, compensation is only payable in relation to the costs associated with the pregnancy and labour, but not in relation to bringing up the child.

If the child born suffers from a disability, the claim can include compensation for rearing or maintaining the child that arise because of the disability. 5

South Australia

In South Australia, the law prevents compensation from being awarded to cover the ‘ordinary costs’ of raising a child when negligence or innocent misrepresentation has resulted in unintended conception of a child, or the birth of a child that would have been aborted. Nor will compensation be awarded when there has been the failure of an attempted abortion or the failure of a contraceptive device. 6

‘Ordinary costs’ include all costs associated with the child’s care, upbringing, education and advancement in life.

The legislation does not prevent a claim for costs up to and including the birth such as antenatal, obstetric and labour care, or pain and suffering.

In the case of a child who is mentally or physically disabled, any amount that exceeds the ‘ordinary costs’ may also be claimed. 7

Queensland

In Queensland, the court cannot award damages for economic loss arising out of the costs ordinarily associated with rearing or maintaining a child as a result of failed sterilisation procedures 8 and failed contraceptive procedures or contraceptive advice. 9

The legislation does not prevent a claim for costs up to and including the birth such as antenatal, obstetric and labour care, or pain and suffering, so these may be possible. See for example, here.

The legislation also does not preclude claims from people who have had a child due to negligence related to other acts/omissions not associated with sterilisation or contraception (eg. assisted reproduction).

The legislation also does not address a right to claim costs for rearing a disabled child. The Supreme Court of Queensland has previously found in favour of a Plaintiff mother after her doctor failed to diagnose her rubella and warn her of the consequent risks to her fetus, who was born with severe disability. 10 It is likely therefore that this would be followed in future cases.

What about the child, does it have a claim?

When children have been born with disability as a result of negligence similar to that described for ‘wrongful birth’ claims; attempts by the children (usually by way of next of kin/guardian) to bring ‘wrongful life’ claims have also been made.

The claims have not been accepted in Australia.

Read more on the Health Law Central page on ‘wrongful life’.

Find out more

For more information about wrongful life see here:
For more information about a cause of action in negligence see here:
Leaves

Notes:

  1. Procanik v Cillo 478 A.2d 755 N.J. 1984.
  2. Sonia Allan and Meredith Blake, The Patient and Practitioner: Health Law and Ethics in Australia (2014) Lexis Nexis, p362.
  3. Cattanach v Melchior (2013) 199 ALR 131; (2003) 77 ALJR 1312; (2003) Aust Torts Reports 81-704.
  4. Civil Liability Act 2002 (NSW), s 70(1).
  5. Civil Liability Act 2002 (NSW), s 70(2).
  6. Civil Liability Act 1936 (SA), s 67(2).
  7. Civil Liability Act 1936 (SA), s 67(2).
  8. Civil Liability Act 2003 (Qld), s 49A.
  9. Civil Liability Act 2003 (Qld), s 49B.
  10. Veivers v Connolly [1995] 2 Qd R 326.