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Citation: 14 K.C.L.J. 224 2003

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and for any attributable loss of earnings during the pregnancy. Udale v BloomsburyAHA [198311 LR 1098. Any enors remain the sole responsibility of the author.' However. three questions will be addressed: what exactly is the law governing liability for unplanned conceptions and births. 5. Emeh v Kensington and Chelsea and Westminster AHA [1985] 1 QB 1012 (CA). English law permitted recovery for pain and for expenses associated with pregnancy and childbirth. University of Warwick. Thake v Maurice [19861 QB 644 (CA). [2002] LUoyd's Rep Med I (CA). 3. and which caused her to suffer permanent brain damage. 2. what are the implications of the latest decisions in this area. In the following discussion.224 THE KING'S COLLEGE LAW JOURNAL claims.4 It confirmred that the mother can be compensated for the pain and discomfort caused by an unwanted pregnancy. [2002] QB 266 (CA). The courts initially rejected claims for the upkeep of an unplanned child because the birth of the child was a "blessing". Megan. [20011 EWCA Civ 50. as well as for the cost of raising the child whether or not the child was born healthy. Groom v Selby made it clear that the disability must derive from a genetic source or else arise from the processes of intra-uterine development and birth. the claimant was entitled to recover the extra costs attributable to bringing up her disabled child. Weir 'The Unwanted Child" (2000) 59 CLJ 239. but the case also seemingly established that the parents of a healthy child cannot claim the cost of raising the child from a person who has breached a duty to take care to prevent the birth. for a time. and have these decisions improved the law? THE CASES Cases concerning unplanned conceptions and births first came before the English courts in the early 1980s. and the particular problems that are created by such claims within the context of medical negligence. In Parkinson v St James and Seacroft University Hospital NHS Trust. arose from the * School ofLaw. 241.' and yet a number of recent cases have involved claims for damages in respect of unplanned births. [200012 AC S9 (InL). 6. Several Court of Appeal cases have now taken the law further. T. i." McFarlane v Tayside Health Board changed this. . [20011 EWCA Civ 1522.2 However. The author wishes to acknowledge with gratitude the helpful corn- ments by Mark Larney and Charles Mitchell upon an earlier draft of tis paper. 4.6 Thus. but only because the meningitis which Megan con- tracted. in Groom. RACHAEL MUTi~ERON* UABIJTY FOR UNPLANNED CHILDREN S THE birth of a healthy child always a reason for congratulation? At least one academic commentator thinks so. it was held that the McFarlane case does not bar claims for the "additional" costs attributable to the upkeep of "disabled" children.

[20031 QB 20 (CA). humour. However. Thus. Hale Q could see no diffi- culty in using the same definition in the case before her.. as well as common belief's. The Guardian 9 April 2002. as Andrew Grubb has observed. The first of these is the meaning of the term "disability". it is perhaps umsurprising that the claimant's severe visual impair- ment qualified as a disability in the Rees case. given the definition. injury or congenital defomity or such other disability as may be prescribed". However. 8. [52] (Brooke L). above i S. the claim is:' 0 7. 10. such as are the lot of many children who do not suffer from significant difficulties. Why would I not want my daughter to be part of that? Perhaps the courts will not focus on some abstract definition of "disability". . Hale Q's analysis in the Parkinson and Rees cases suggests that the key issue is whether the claimant requires special consideration because she needs help to raise her child. Thus. The effect of the cases is to require the courts to decide in many sit- uations whether a particular child or mother is "disabled". it does not cover minor defects or inconveniences. games.[2002] EWCA Civ 88. deaf or dumb or suffers from mental disorder of any kind or is substantially and permanently handicapped by illness. In the Parkinson case. A. Finally. and Sharon Ridgeway. 9.. history and poetry. 82. In April 2002. or in similar cases.' ANALYSIS These cases raise at least five important issues. Judges may have to decide what constitutes a disability in this context on a case- by-case basis. or that the daughter's brain damage in the Groom case similarly also qualified as a serious disability. "disability" is a controversial tenn. in Rees v Darlington Memorial Hospital NHS Trust. a deaf woman. section 17(1 1). The appeal in Rees was mforntmately decided by the HL too late for comment here: [200] UKHL 52. which establishes that for the purposes of the services to be provided under Part III of the Act a child is taken to be relevantly in need if he is "blind. the Court of Appeal held that the mother can be compensated for the extra costs of raising a healthy child attribu- table to the mother's disability. in the context of claims regarding disabled children. This expression stretches to include mental disabilities (including severe behavioural difficulties). argued in The Guardian that this school of thought is not radical because having a shared language (sign) means that the deaf share a culture: 9 We a]] share the same ways of life and values like the same technology such as flashinig lights in the home and teit phones. Grubb "Failed Sterilisation: Damages for the Birth of a Disabled Chid" (2002) 10 Medical Law Rev 78. Parkinson. as well as physical disabilities. many British newspapers reported that an American couple who deliberately set out to conceive a deaf baby are part of a "radical" school of thought that believes deafness is a cultural identity and not a handicap. Hale LJ drew guidance from the definition of a disabled child in the Children Act 1989. ANALYSTS process of her birth during which she was exposed to the bacterium in question.

' Grubb points out that the issue is whether the defendant owed a duty of care to the claimant.. the outcome of the claim will turn on whether the claimant was in a "special" relationship with the defendant sufficient to give rise to a duty of care: the "closer" the relationship between the claimant and the defendant. AD v East Kent. Above n5. Rather. [181 qJudge LJ). 11. Above nl0. The court therefore struck out her claim.' Thus. If she cannot.11 The second issue presented by the cases has been summarised by Andrew Grubb in the following words:1 Who can claim damnages for raising a child?. it is clear that "the per- son providing the voluntary service has no cause of action of her own". because it is clear that the claimant will never raise the child herself and will not incur any child-rearing costs.-E The couple stopped using contraceptives after the claimant consulted her own GP. the question whether a father or future sexual partner of the patient can recover their expenditure does not simply depend upon whether they have personally incurred "extra burdens" occasioned by the extra care that a disabled child needs. [1996] 1 WLR 1397 (CA). 13. the claimant began her relationship with a man several years after he had undergone a vasectomy arranged by the defend- ant and had been advised by the defendant that the operation had been successful and that the man no longer needed to use contraception. . not on some abstract definition of'disability'. The Court of Appeal held that the defendant was not in a sufficient. the vasec- tomy underwent a spontaneous reversal. and the claimant became pregnant. 14. given the vasectomy. above ni1. In Goodwill v British Pregnancy Advisory Service. relationship with the claimant such as gave rise to a duty of care. 12.H. for example. as Hale LJ seemed to suggest in the Parkinson case. thereby causing the man to regain his fertility. can a mother sue when the birth follows a negligently performed vasectomy? Where a relative voluntarily brings up and supports the child. [2003] PIQR 18 (CA). She claimed damages for economic loss.. Above nl0. 16.226 THE KING'S COLLEGE LAW JOURNAL dependent. who advised her that there was only a small possibility of pregnancy. Can afather claim when the mother is the subject of a negligent operation? Similarly. the stronger the claimant's case will be. AD v East Kent Community N-S Tiust [20021 EWCA Civ 1872. since when the advice was given the claimant was not the man's partner but merely a member of an immeasurably large class of women who might in future have sexual relations with him. [94]. then she cannot recover compensation. and argued that the defendant had breached its duty of care to her by failing to warn her partner of the possibility of reversal. Likewise. in cases where the mother is disabled the essential issue is whether the claimant can identify a reasonable extra expenditure arising from her physical or men- tal condition. or any special. 15. However. but rather on whether the claimant can point to a reasonable extra expenditure arising from the child's phys- ical or mental condition.

18. However. The defendant might have owed a duty to the current wife or partner of the man at the time of the vasectomy. if he gives her advice regarding the vasectomy.nd presumably passed or to the surgeon if different they may be relevant to the issue of the surgeon's assumption ofresponsibility". and pos- sibly that patient's wife or partner. Where the claimant has been contributorily negligent. According to Robert Walker Q:I" "[if] the reasons are communicated to the consultant --. above n7. Above n.' 9 Under section 1(1) of the Contributory Negligence Act 1945. In some jurisdictions in the United States. On the other hand. However. In the Rees case. ANALYSIS 227 ruling that a woman exploring the development of a sexual relationship with a new partner has a responsibility to protect herself against unwanted conception and to take independent advice on whatever facts he presents. the damage recoverable in respect of the injury is reduced to such extent as the courts thinks eq uitable having regard to the claimant's share in the responsibility for the damage. [541. contributory negligence occurs where "any person suffers damage as the result partly of his own fault and partly of the fault of any other per- son or persons". Hale Q said nothing about claims where the surgeon did not know of the mother's disability and her motivation for undergoing the operation. Rees. Hale Q held that the claimant was entitled to recover the extra costs of bringing up the son attributable to her disability. Robert Walker Q specifically questioned Lord Millett's view in the McFarlane case that the parents' reasons for wishing to avoid childbirth are imma- terial. 8 nor did he clarify whether communicating the reasons for wishing to avoid children to the consultant could be relevant to the issue of the surgeon's duty of care where the consultant did not pass on the information. defendants have argued that the parents must "mitigate" their loss by putting the child up for adoption. Cf Cattanch v Melchior (2003) HCA 38 [2061 (MayneJ): "How would the not uncoomonl case ol mixed motives be resolved? What if the motives of the patient and the patient's parmer differed?" 19. Robert Walker Q did not explain how the parents' reasons may be relevant. since the surgeon knew of the disability and also knew that this was why the mother wanted to avoid having a child. [341. common sense might suggest that these reasons would be irrelevant in such a case. The courts are reluctant to blame parents in cases concerning claims for unplanned children. and that this was the reason why she wished to avoid having a child. However. the doctor in the circumstances only regards himself as advising the patient. The third issue that arises in negligent sterilisation cases is whether the claimant can recover the extra costs of raising her child that are attributable to the claimant's disability if the surgeon did not know that the claimant was disabled. The fourth issue that arises is the meaning of Brooke L's statement in the Parkinson case that "the ordinary rules relating to contributory negligence will be applied in an appropriate case to limit recovery". the 17. The law is unclear in relation to this issue. However. .

The child's mother is only liable under the statute where the injury is attributable to her negligent driving while pregnant (s.2 t An argument that a failure to have an abortion or arrange the adoption of a child could constitute a "new intervening cause" for which the defendant was not responsible was not made in the McFarlane case. it seems unlikely that an English court would view a refusal to seek an abortion as excusing the defendant. alcohol use during pregnancy may cause certain birth defects. it must be realised 20. it would be wrong for the law to characterise it 22 as unreasonable". in question is born without disabilities". a woman might be expected to know that alcohol use during pregnancy increases the risk of foetal abnormalities. an argument that a mother was partially responsible for her child's disability would perhaps be successful where the mother behaved in an "unreason- able" manner and thereby caused or increased the extent of the disability. above n23. 21. The Court of Appeal rejected this argument on the facts. But NB the mother would not be liable to the child in respect of the disability. Oxford: OUP. Custodio v Bauer 59 Cal Rptr 463 (Cal Sup Ct 1967). Wivel. aboven 18. above n23.lo It has not yet been made in this country. available on-line at: vww.org/poems 17 htm. but it would be difficult to define the point at which she would be negligent if she deliberately consumed alcohol. For instance. at least where the child. a mother who caused her child's disability by smoking would arguably have been contributorily negligent where she was aware of her pregnancy. 24.228 THE KING'S COLLEGE LAW JOUJRNAL United States courts have treated this argument unfavourably.24 However. so long as the decision is to pursue a lawful course. [117] (Kirby J). it is important to note that 'no safe level of alcohol intake during pregnancy has ever been defined". 25. Deakin Tort Law (4th ed. But cE Cattanach v Melchior. It applies to all births alter 22 Jdy 1976. B. since smoking dur- ing pregnancy "has been associated with impaired growth after birth. Even so. 1999) 277. although the defendant in the Emeh case did argue that the mother should have sought an abortion when she discovered that she was twenty weeks pregnant. For exam- ple. in whole or in part. especially if it is based upon an ethical objection to abortion. Wivel. Wived "Substance Abuse During Pregnancy ". since Lord Steyn said that he could not imagine any circumstances in which the deci- sion of the parents not to resort even to a lawful abortion could be questioned. 2). Markesinis amd S. He added that it is difficult to envisage any situation in which it would be right to chal- lenge the decision of the parents not to have a child adopted. A. However.2-3Anything that applies to matemal smoking may also apply to cer- tain other substances ingested during pregnancy. An action by a child for a pre- natal injury would generally only succeed under the Congenital Disabilities (Civil Liability) Act 1976 where the defendat breached a diuty owed to the parent (s. Furthermore. Cattanach v Melchior. . although it appears that heavy drinking is associated with more congenital problems. Thus. [221]. HayneJ recently said in the High Court of Australia that "whatever the decision. ). and behavioural maladies such as hyperactivity and attention deficit disorders". stating that most United States jrcmtdictions nonethe- less "deny the recovery of the costs ofcibd-rearing [on public policy grounds]. 21.hygeia. abose n18. Similarly.2'. but it seems that it would have been disregarded by the House. 22. Burke v Rivo 555 NE 2d I (Mass Sup Jid Ct 1990) 4. impaired intel- lectual development. but it was successful at first instance and Waller LJ suggested in the Court of Appeal that his deci- sion might have been different if the claimant had discovered her pregnancy when she was only eight weeks pregnant. This Act replaced the common law m respect of prenatal injuries.

WIDER ISSUES The cases also raise two further issues with a wider resonance: should claimants be allowed to sue for the cost of raising healthy children. since it could be attributable to other factors.2 9 but according to Muiris Lyons. above n23. In October 1984 she commenced proceedings against Haringey Health Authority. Groom. 28. if a child's disability is not present at birth." 27. since the birth of a healthy child is surely a matter for celebration.) t The claimant underwent an operation for sterilisation on the day after the birth of her third child. any illness that affects a premature child while she is particularly vulerable because of her prematurity might also establish a right to recover compensation. the longer the period before the disability is trig- gered. Finally. the more difficult it may be to establish a right to recover compensation "because new intervening causes are likely to be at work". holding that the blame to be attached to a mother who increased her child's risk ofinjiry by putting the lap pat of her seat belt around the child when travelling in a car with the child on her lap "must be limited by [her] lack oflunderstandng of thi risk a lack wich [she] shared with much of the public and which is in that sense objectively imderstandable. [19881 QB 481 (CA). Darren. For example. She received £ 19.2. M. Moreover. "many observers consider the decision in McFarlane to be very unfair". 2 ' it may be impossible to establish the cause of the disability. Tony Weir thinks that it would be outrageous to claim that the parents should be entitled to the cost of raising a "healthy brat". [26] (Brooke LJ). . It has been discussed in many jurisdic- tions. when will the courts regard it as attributable to some new intervening cause rather than to the processes of inter- uterine development or birth? Any disability arising from genetic causes may suffice to found a claim. 29. Lyons "Personal Injury Clinical Negligence Failed Sterlisations Unwanted Birth Disabled Mother" (2002) 2 Journal of Personal Injury Law 212.000 at first instance. Consider Gold v Haringey Health Authority. It is tempting to conclude that it would be ridiculous to award com- pensation to parents who pronounce themselves happy with the result of their unplanned healthy child. T. Wivel. Weir A Casebook on Tort (9th ed. 31. The operation did not succeed. Furthermore. proving a causal link between the claimant's "unreasonable" behaviour and her child's disability will be difficult in many cases. for she gave birth to a fourth child. as their Lordships noted in the McFarlane case. despite the fact that she and her husband had pronounced themselves delighted with Darren. above n6. and can the current distinc- tions between claimants be maintained? The first issue is particularly controversial. London: Sweet & Maxwell. although cer- tai foetal abnormalities are associated with cocaine use. 2000) 131. 213. CE J (a child) v Wilkins [2001] PIQR 179 (CA) 184-5 (Keene LJ). their first boy. 30. ANALYSIS 229 that the question in respect of contributory negligence is what can reasonably be expected of the claimant. who generally will not have expert medical knowledge and 26 may be addicted to the substance in question.':. However. and indeed had gone on to have a fifth child before the 26. since there is no net harm in such cases.

112. the courts treat harm as a purely legal concept where they are assess- ing damages for loss of amenity. is relevant in respect of and will eliminate those heads or elements of damage which can only exist by being felt or thought or experienced.. McFarlane.. . by a process ofsubjective devaluation. but only because the defendants had not been negligent. we find that the courts currently treat "harm" as both a legal and a fac- tual concept. [19801 AC 174 (BL). if Mrs. Nonetheless. 112. should the claimant's notion or experience of "harm" be rele- vant in the courtroom? In the McFarlane case.. 35. choose to regard it as such".. receiv- ing a pre-set amount for the loss of a hand. to be determined by the claimant. Gold considered Darren an "injury" in net terms. Lord Scarman made it plain in Lim Po Choo v Camden and Islington AHA that such awards depend on the claimant's personal awareness of pain.e. healthy baby as more trouble and expense than it is worth". but in the case of pain and suffering the sum awarded has been aptly described by Margaret Brazier and John Murphy as "the sum which society deems fair (fairness being interpreted by the courts in the light of previous decisions)"..s4 His view therefore seems to be that "hann" is a legal rather than a factual concept. if at all.. The fact of unconsciousness does not. Lord Morris said that:-" the fact of unconsciousness. 33. why should the law treat it as damage? Cases like the Gold case raise an important general question: should the law treat "harm" as a legal rather than a factual concept? Or to put this question in another way. above n4. why did she pronounce herself delighted with him? Secondly..230 THE KING'S COLLEGE LAW JOURNAL judgment. 38. how the 'deprivation of the ordinary experiences 32. that harm is an "objective" concept to be determined by the court rather than a "subjective" one. London: Butterworths. 1999) 550.. A court will award damages for loss of amenity even where the claimant is permanently unconscious and cannot appreciate his condi- tioni.-' In H West & Son v Shephard.) Street on Torts (10tb ed. if she did not consider Darren's birth an "injury" in net terms. when we turn to cases concerned with the award of damages for pain and suffering. eliminate the acm- ality of the deprivations of the ordinary experiences and amenities of life which may be the inevitable result of some physical injury. Lord Millett stated that "in ordinary life . 36. i. bowever. [1964] AC 326 (PeL) 349. Wise vKay [1962] 1 QB 638 (CA). Murphy (eds."6 In contrast. At least two specific questions are relevant. which means that the claimant is generally compensated according to a tariff for example. 114. McFarlane. 2 that "plaintiffs are not normally allowed. above n4. 37. M. First. They award "conventional" sums for pain and suffering...above n4. as Michael Jones points out.the birth of a healthy and normal baby is a harm only because his parents ." Thus. The Court of Appeal reversed the award. the claimant's experience of "harm" is relevant. However. a significant problem with this approach is that "it is difficult to see . 34. However. Brazier andJ. to make a detriment out of a benefit"."" and that 'it is morally offensive to regard a normal. McFarlane. to what extent.

to bring that parent to a par with able-bodied parents. ' Two other criticisms can also be made ofHale LJ's approach in the Rees case. The law allows the recovery of dam- ages for the extra costs of bringing up a child attributable to a child's or a mother's disability. if an able-bodied mother needs help in order to avoid a crisis in health terms.[54.. Hoyano. but the lady with a disability was rich-what then? It would simply emphasise the percep- tion that the rule was not operating fairly". . ANALYSIS 231 and amenities of life' can be actual to someone who cannot experience the depriva- tion".Jones Textbook on Torts (8th ed. [411. [221. as well as "the statutory obligation placed upon local authorities by the Children Act 1989 to safeguard and promote the welfare of children who are in need.A. above n7. by providing a range and level of appropriate services to support and preserve the family unit so as to reduce the need for care or supervision orders". L Hoyano "Misconceptions about Wrongful Conception" (2002) 65 MLR 883. as Robert Walker LJ did in the Rees case when he reasoned that "these difficulties should not in my view deter this court from allowing the possibility of recovery. in circumstances which . as in Wailer LJ's example. 44. that. 43. However. Hale LJ held that only lie additional child maintenance costs attributable to the parent's disability are recoverable.2002) 692. However. Oxford: OUP. 901. 41. The first is that her Ladyship overlooked "the practical support provided by central govem- ment programmes for the disabled and by disability-specific charities". Rees. able-bodied parents do not need help "in order to be able to discharge the basic parental responsibility of looking after the child properly and safely"..4 .. 40. Rees. 42. Nor is it satisfactory to skate over the fact that a disabled parent can recover when a mother who may in effect become disabled by ill-health through having a healthy child cannot. her need to avoid a breakdown in her health is no different from the need of someone who already has a disability.9 The second wider issue is also problematic.].. although it does not allow the recovery of the costs of an able-bodied parent looking after a healthy child. above n7..The second is that she did not tread 44 delicately enough and identified disability with incapacity: True.40 Hale Lj made it clear in the Rees case that her approach to this area of the law is premised on the view. Rees. Waller Q addressed this issue in the Rees case. then she does need help "in order to be able to discharge the basic respon- sibility of looking after the child properly and safely". He pointed out that as the law stands a woman who already has four children and did not want to have a fifth cannot recover the costs of caring for the fifth child even where the fifth will create a crisis in health terms unless help in caring for the child is available. ultimately this is a facile 39.are not covered by McFarlane's case and are a legitimate extension of Parkinson's 4 case". whilst initially appealing. M.41 However. above n43. since claimants require special sympathy in these cases. unlike a disabled parent. 900. and indeed might be greater depending on the degree of disability: "if one were to add that the lady with four children was poor. above n7.

1. As Iraida Alvarez argues in the context of US law. but with- 4 out an assumption of incapacity. It is difficult to justify the present state of the law. To avoid inadvertently patronising and demeaning disabled persons. through intermediate subsidiaries. JF. L Al varez "ACrtiqieofteMostivational kralysis inWrongffl Conception Cases" (2000) 41 Boston CoJlege Law Review 585. Judge Schwartz of the Southern District of New York issued a voluminous decision in Presbyterian Church of Sudan v Talisman Energy Inc. Talisman was ." The plaintiffs alleged that the Sudanese Government. The courts may never reach solutions that will satisfy the overwhelming majority of people in cases involving unplanned children. a Canadian oil company with oil exploration and extraction operations in Southern Sudan. ill-fed and ill- educated because his or her family had to extend their financial resources beyond what they could afford.46 Although this would be a significant "injury" to the child.. there is more at stake than the interests of the parents. many people might well say that the courts should pay more attention to the need to protect a child from the consequences of poverty in cases of this kind. Hoyano. Petronas Carigali Nile Ltd oi Malaysia and Sudapet Ltd of Sudan. 3. with a view to accommodating them. THE KING'S COLLEGcE LAW' JOURNAL distinction because the wholesale exception for disabled persons assmnes that reliance upon paid third parties Cor child care is necessary. 2. a joint venture whose other owners include the Chinese NationalPetroleu m Company.625-6. 28 USC § 1350. 2003 WL 1339181 (SDNY 19 March 2003).Talisman. with the 45. London School of Economics. the focus of the courts in cases like the Parkinson and Rees cases is on the harm to the parents.above n43. since people might be equally divided in opinion if asked to decide what was fair in such complex cases. * Law Department. However. 901. Not award- ing parents compensation may result in a child growing up ill clothed. owns or controls 25 % of the Greater Nile Petroleum Operating Company (GNPOC).or did it? On that date. 46.. it is necessary to focus on the "true personal characteristics of an individual which may or may not create actual functional limitations.2 This was a lawsuit brought under ATCA by current and former residents of the Sudan against the Government of the Sudan and Talisman Energy Inc.ssF ET'N* CORPORATE LIABILITY UNDER THE US ALIEN TORT CLAIMS ACT AND THE (INADVERTENT) CREATION OF AN AMERICAN INTERNATIONAL LAW INTRODUCTION QN 19 MARCH 2003 the jurisprudence of the US Alien Tort Claims Act (ATCA)l took a significant step forward . Within GNPOC.