Why wrongful birth actions are right

A wrongful birth action is a claim in negligence brought by parents of a child against a doctor who has "wrongfully" caused their child to be born. These claims can be divided into two categories: those where a doctor performs a failed sterilisation procedure that leads to a healthy child being born; and those where a doctor fails to provide sufficient information to allow parents to choose to abort a handicapped child. The recent decision of the High Court of Australia in Cattanach v Melchior (2003) 77 ALJR 1312 falls into the former category. The decision to allow the parents to receive damages for the costs of raising and maintaining their child has generated much public debate. Despite the endorsement of this "wrongful birth" action, there are indications that the legislature will overturn the decision. This article examines whether there is a sound doctrinal basis for recognising wrongful birth actions.     

Wrongful death claims. Harriton v Stephens. [2002] NSWSC 461. Edwards v Blomeley. [2002] NSWSC 460. Waller v James [2002] NSWSC 462

Studdert J in all three cases went to great length to summarise the global judicial position of "wrongful life" claims. He did not, however, examine in great length how or whether "wrongful life" claims or "wrongful birth" claims are reconcilable with tort and common law principles. Although the cases identify the difficulty in assessing and quantifying damages, they do not directly address the strict legal principles which apply in the assessment of damages. The main conclusion of the three judgments was that no duty of care is owed to the plaintiff in these circumstances and, even if a duty could be established, the impossibility of quantifying damages and public policy considerations warrant the rejection of such a claim: "thus conscience does make cowards of us all." The significance of the decisions cannot be understand. The decisions deny recognition of "wrongful life" claims in circumstances where a disabled person has incurred injuries en ventre sa mere (in the mother's womb) as a result of infections contracted by a plaintiff's mother or genetic material passed on by a plaintiff's parents. Some countries have now legislated for the abolition of "wrongful life and birth" suits. In January 2002 the French legislature passed a Bill overturning the "wrongful life" decision of the Cour de Cassation in Perruche (17 November 2000). As the issue now falls for ultimate determination by the French Senate, the French pro-life movement continues to lobby for the prohibition of "wrongful birth" suits as well. Furthermore, eight States in the United States have prohibited either one or both actions and the State of Michigan prohibited both actions in 2001. It is likely that all three cases will be appealed. The appeal in Harriton will re-examine the viability of a "wrongful life" claim in Australia whereas the cases of Edwards and Waller still need to determine the "wrongful birth" claims brought by the plaintiffs' parents. It is likely that the latter two cases will not be determined until the High Court has considered the Queensland "wrongful birth" case of Melchior v Cattanach, expected to be late in 2002.     

Abandoning the common law: medical negligence, genetic tests and wrongful life in the Australian High Court

The Australian High Court recently found that the common law could allow parents to claim tortious damages when medical negligence was proven to have led to the birth of an unplanned, but healthy, baby (Cattanach v Melchior (2003) 215 CLR 1). In Harriton v Stephens (2006) 80 ALJR 791; [2006] HCA 15 and Waller v James; Waller v Hoolahan (2006) 80 ALJR 846; [2006] HCA 16 the High Court in a six-to-one decision (Kirby J dissenting) decided that no such claim could be made by a child when medical negligence in failing to order an in utero genetic test caused the child severe disability. In an era when almost all pregnancies will soon require patented fetal genetic tests as part of the professional standard of care, the High Court, by barring so-called "wrongful life" (better termed "wrongful suffering") claims, may have created a partial immunity from suit for their corporate manufacturers and the doctors who administer them. What lessons can be learnt from this case about how the Australian High Court is, or should be, approaching medical negligence cases and its role as guardian of the Australian common law?     

The risk of birth defects: Jacobs v. Theimer and parents' right to know.

This Article discusses the Texas Supreme Court's holding in Jacobs v. Theimer that the parents of a defective child had a cause of action for damages against a physician for alleged negligent failure to inform the mother during pregnancy that she had contracted rubella and therefore might have a defective child, thereby causing her to lose the opportunity to have an abortion. The Article raises a number of questions that post-Jacobs courts probably will confront concerning the duty of physicians and genetic counselors to keep their clients informed; describes some social and medical developments--including recent progress in medical genetics and prenatal diagnosis--which are likely to make Jacobs a significant precedent; evaluates the court's decision to allow a damage suit only for the costs of treating and caring for the child's defects; and briefly addresses the question of whether the Jacobs case comes within the sphere of suits for what has come to be known as "wrongful birth" and "wrongful life."     

What Is The Wrong Of Wrongful Disability? From Chance To Choice To Harms To Persons

The issue of wrongful disability arises when parents face the choice whether to produce a child whose life will be unavoidably flawed by a serious disease or disorder (Down syndrome, for example, or Huntington’s disease) yet clearly worth living. The authors of From Chance to Choice claim, with certain restrictions, that the choice to produce such a child is morally wrong. They then argue that an intuitive moral approach––a “person-affecting” approach that pins wrongdoing to the harming of some existing or future person––cannot account for that wrong since the choice to produce such a child cannot, under the logic of the nonidentity problem, harm that child. The authors propose that we supplement the person-affecting approach with an “impersonal” principle that takes the form of their well-known principle N. In this paper, I argue that the authors are mistaken to suppose that a plausibly articulated person-affecting approach cannot account for the wrong of wrongful disability. We can retain an intuitive, comparative, “worse for” account of harm and still identify serious harms imposed by the choice of wrongful disability. In particular, I argue that harm, both to the impaired child and to others, comes not in the form of that procreative choice’s procreative effect but rather in the form of its many distributive effects. I also argue that the rare, residual case in which a person-affecting approach would approve of the choice of wrongful disability does not function as a counterexample to that approach. As a separate matter, I address legal claims for wrongful disability, which are closely akin to claims for wrongful life. The legal claim is brought by the impaired child, not against the parents, but rather against health care providers whose negligent failure to diagnose or inform parents of an increased risk of a genetic or congenital impairment results in the birth of the impaired child. The authors’ treatment of the moral wrong that is done as impersonal in nature suggests that courts are correct to dismiss any such claim. Once we identify harm, however, the person-affecting approach can identify a clear foundation in the law for the wrongful disability claim.     

Wrongful life actions: the legal and ethical hurdles

This article discusses the various legal and ethical issues arising out of the cause of action for wrongful life. This action involves a claim by a child that but for the negligence of the doctor, hospital or other medical institution, his or her mother would have terminated the pregnancy and he or she would not have been born. The courts have generally rejected this cause of action on the basis of legal, ethical and policy considerations. The author proposes that the legal hurdles can be overcome and that the ethical and policy considerations do not outweigh the desirability of upholding wrongful life claims.     

The moral status of wrongful life claims

A wrongful life action is a claim brought by a disabled child who asserts that but for a physician's negligence he or she would not have been born, thereby being spared the suffering of life. The action is inherently controversial because the alternative to an impaired life is non-existence. Lord Griffiths has described such claims as 'utterly offensive; there should be rejoicing that the hospital's mistake bestowed the gift of life upon the child.' This paper cuts through the rhetoric that the debate has generated and analyses whether there is a sound doctrinal basis for recognizing wrongful life actions.     

Wrongful birth and the politics of reproduction: West German and English law considered

This article considers the law relating to compensation in tort and contract for failed sterilizations and failed abortions leading to the birth of an unplanned but healthy child in the Federal Republic of Germany and England. It uses a policy-based analysis which takes the social construction of gender as a significant factor in judicial decision making. It criticizes existing literature for failing to take into account gender divisions in society and points to ways in which both the framework within which wrongful birth cases are discussed generally and the limitations which have been placed on recovery specifically reflect gender stereotyped notions of female and male behaviour and sexuality. I conclude that there are three main areas of concern in the wrongful birth cases: a) the inadequate recognition which the law accords to women's work in the home when awarding damages for maintenance of the unplanned child to majority; b) the awarding damages exercised by the politics of abortion, which can lead to undue restrictions on recovery; and c) the difficulties which the law experiences when attempting to conceptualize an interference in a woman's procreative autonomy in the same terms as an interference in a typically 'male' sphere of life, such as professional autonomy. Thus there is an urgent need to reconsider the categories of the law of obligations such as 'damage' and 'compensation', which are central to the principle of individual responsibility for harm caused, in order to reveal their gendered content and differential effects.     

FROM INFANTS TO ADOLESCENTS A Developmental Approach to Parenting Plans

Divorce and the resultant process of child custody decision making impact heavily on the lives of children. Increasingly, parents and professionals have realized the importance of encouraging shared responsibility in child rearing following separation and divorce. This shared responsibility must continue throughout a child's life and into young adulthood. This article introduces a comprehensive child-and family-focused model of decision making. The goal of this model is to assist professionals in their work with parents and to help parents formulate parenting plans that reflect the ever-changing developmental needs of each child and that specify how each parent will meet the particular needs of each child in the family. Through the use of educational parenting seminars and the completion of a Needs Assessment for each child, flexible parenting plans are created and positive co-parenting skills develop.     

Trial court decision in Houle case

The plaintiffs in this case, a hospital and an attending physician, petitioned the court to exercise its parens patriae authority when the parents of a newborn with multiple birth defects refused to consent to surgery that would permit normal feeding and respiration. Basing his decision on the medical necessity and feasibility of the proposed treatments and setting aside the issue of the infant's quality of life, Justice David G. Roberts of the Superior Court ruled that the parents had no right to withhold care from their child. He authorized the infant's guardian ad litem to consent to surgery and other standard life-preserving measures that were immediately necessary, retaining jurisdiction for the court over future developments in the case.     

It's a wonderful life: is it possible to say that a severely disabled child has been harmed by the mere fact of being born?

"It's a Wonderful Life," the title of Frank Capra's classic 1946 movie, seems to encapsulate a fundamental all-American conviction. Unsurprisingly, several courts and jurists have applied the movie-title maxim as the ultimate retort to one of the most intriguing questions in modern tort discourse: Is it possible to say that a severely disabled child has been harmed by the mere fact of being born? Wrongful life claimants answer in the affirmative, whereas Capra's aphorism makes a compelling counter-argument. In my opinion, the contrasting views represent equally legitimate subjective beliefs rather than objective truths, so neither may ever prevail. Without a satisfactory solution from conventional wisdom, the life-as-injury debate may be the Gordian knot of tort law. The purpose of this Article is to cut, rather than untie, the knot: Allow the child to recover without challenging or validating the deep-seated perception of life. Part I shows that hostility to liability in tort for wrongful life is almost universal, crossing lands and seas. Part II argues that this demurral is ultimately rooted in the absence of one of the central components of the cause of action. A tort action must fail because of the inability--both logical and practical--to establish "harm" under the traditional definition of this term. Part III opines that because the Gordian knot of tort law cannot be untied, it must be cut altogether. We must replace the traditional tort framework, which gives rise to an insoluble problem, with a more promising contractual framework inspired by the celebrated case of Hawkins v. McGee. In my view, the child may base an action on the claim that the defendant promised the parents that the child would be born without a certain defect and that the promise went unfulfilled. In formal terms, the child is an intended third party beneficiary of the contract between the parents and the consultant in which the latter warranted birth without a particular disability. The warranty of the future child's physical integrity and health, an integral and inseparable part of the contract, should form the basis of the child's cause of action.     

Health, disability & parental interests: adopting a contextual approach in the reproductive torts

Illustrating the limitations of the notion that caring for a disabled child is harmful and sufficiently distinctive from the (judicially viewed harmless) experience of caring for non-disabled children, this article takes issue with the differential outcomes of the reproductive torts where success pivots upon the presence or absence of disability. Since caring for any child must be seen as bringing about a significant caring responsibility, if there is a difference in the burden that results, this will be a matter of extent, not kind. Also taking a critical view of the House of Lords recent determination of Rees v Darlington Memorial Hospital, this article notes that nor can a "common approach" to all claims of wrongful conception and birth offer an equitable alternative. Ignoring context and treating all reproductive outcomes equally for the purposes of compensation is certain to result in manifest unfairness. The thrust of the argument is that it is essential that the law embrace a more contemporary and contextual approach, based on the value of reproductive autonomy.     

With the fourth sentence of the First Chamber on wrongful birth: is it possible to start talking about "jurisprudence"?]

Chamber number 1 of the Spanish Supreme Court of Justice has announced its fourth wrongful birth case decision dated December 18, 2003. The issue is whether we can state that with these four rulings there is a genuine law of precedent, that is, reiterated doctrine of the Supreme Court of Justice on this matter (Article 1.6 of the Civil Code).     

Parenthood,Childhood and Injury: Some Dilemmas for the Law of Torts

This paper looks at some recent developments in the law of torts. It looks in particular at the emergence of civil claims with respect to child abuse and the confinements effected by traditional limitation periods in relation to those claims. It examines in particular in the first section the House of Lords decision in Stubbings v. Webb to the effect that civil claims over child sex abuse were time barred, and the subsequent unsuccessful appeal to the European Court of Human Rights which ruled by seven votes to two that there had been no violation of articles 6 of the European Convention on Human Rights. It is also noted that the Court ruled unanimously that there had been no violation of article 8; and by eight votes to one that there had been no violation of article 14. The paper turns in the second section to what have been called actions for wrongful birth, arguing that here we see the law of torts taking a more protective role, one which must be set side by side with the child abuse actions examined in the first part of the paper. Throughout the paper, both English and Australian law is canvassed. The major claims in this paper relate to what the author terms a singularly adult picture or rights and wrongs reflected in the law of torts.     

Assisting the Factually Innocent: The Contradictions and Compatibility of Innocence Projects and the Criminal Cases Review Commission

The Criminal Cases Review Commission (CCRC) was the first publiclyfunded body created to investigate claims of wrongful conviction,with the power to refer cases to the Court of Appeal. In othercountries, such as Australia, Canada and the United States,many regard the CCRC as the optimal solution to wrongful convictionand, for years, Innocence Projects in these countries have calledfor the establishment of a CCRC-style body in their own jurisdictions.However, it is now Innocence Projects which are being introducedin England and Wales to try to assist applicants who are innocentbut convicted. This article reviews why the CCRC was created,discusses the role of factual innocence within this body andwithin the criminal justice system generally and explores whyInnocence Projects are being created in England and Wales, despitethe presence of the CCRC. It explains how these different organizationsmay work together to assist factually innocent people who havebeen wrongly convicted, and the role Innocence Projects mayplay generally in criminal justice reform and legal education.     

论“失独者”权利的国家保护

"失独者"已然成了新的"特殊群体",其养老、返贫、疾病和心理是他们面临的主要问题,这些问题亟待政府从制度层面予以解决。但无论是国家层面还是地方层面,该问题的立法状况都不容乐观。"失独者"是因为国家义务而致,所以,作为一个人权主体,政府必须有相应的法律政策来保护他们。政府亦可将社会抚养费作为履行了计划生育义务的失独者养老费用。     

Why Requiring Parents to Pay for Postsecondary Education is Unconstituional and Bad Policy

For divorced parents, the question of who should pay for their child's college tuition is very difficult, especially when the issue was never addressed in their separation agreement. Consequently, some states allow judges the discretion to extend child support duties for noncustodial parents after considering certain factors. Such factors may lead to the requirement of parental contributions to their child's postsecondary education. While many states have amended their statutes to encompass extended child support, Pennsylvania is the only state to have found their statute unconstitutional. Based on the Pennsylvania Supreme Court decision in Curtis v. Kline, this Note argues that, in order to diminish inequalities between divorced and nondivorced parents, as well as between children of divorced and nondivorced parents, all states should amend their child support statutes to declare that no parent is obligated to pay for his/her child's postsecondary education, unless voluntarily agreed to, in writing, prior to the child entering college.     

幼女奸生子的抚养问题探析

幼女奸生子的抚养问题极为棘手，容易引发许多伦理纠纷和社会问题，亟待法律的规制。可是，我国有关非婚生子女抚养的立法却比较模糊、概括、缺乏可操作性，在实践中难以发挥作用。针对这一特殊情况，应当完善相关法律，构建以社会救助为主的抚养模式，以促进这一社会矛盾的妥善解决。     

The concept of harm reconceived: A different look at wrongful life

In wrongful life litigation a congenitally impaired child brings suit against those, usually physicians, whose negligence caused him to be born into his suffering existence. A key conceptual question is whether we can predicate “harm” in such cases. While a few courts have permitted it, many courts deny that we can, and thus have refused these children standing to sue. In this article the author examines the wrongful life cases and literature enroute to a broader consideration of harm. This literature, and philosophical discussions of harm generally, rely on a definition which ascribes harm by comparing an individual's current condition with that in which he would otherwise have been, but for the allegedly harmful event. The author shows this definition to be conceptually and morally flawed. A superior general definition is offered which, when then applied to wrongful life cases, shows that we can easily ascribe harm in these cases and can find clear potential for tort liability.