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The Journal of Social Welfare Law

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Is the “wrongful life” action really dead?

a
Jane E. S. Fortin
a
Kings College London
Published online: 01 Feb 2008.

To cite this article: Jane E. S. Fortin (1987) Is the “wrongful life” action really dead?, The Journal of
Social Welfare Law, 9:5, 306-313

To link to this article: http://dx.doi.org/10.1080/09649068708413556

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 Is the ”Wrongful Life“ Action
Really Dead?
by Jane E. S . Fortin
Solicitor, Lecturer in Law, Kings College London
Although many parents would agree that the birth of a child is “a blessing and
an occasion for rejoicing,”‘ recent cases involving “wrongful birth” claims serve
as a timely reminder that this is not always the case and that even if the child is
born free of physical or mental abnormalities, its unplanned arrival may be the
cause of consternation and dismay to its parents.2 It is now well established that
if negligence is involved either in the performance of a sterilisation operation or
in the counselling relating to its effects, and subsequently an unwanted child is
born, the damages awarded the parents may include a sum intended to contri-
bute to the cost of the child’s future ~ p k e e p . ~
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Wrongful birth claims involve unplanned and unwanted pregnancies.

Occasionally however, even a planned pregnancy may result in the birth of a
child whose abnormalities are so severe that arguably, it would have been kinder
not to have allowed it to have been born at all. This is indeed the implication of
section l(l)(b) of the Abortion Act 1967, which provides that evidence of a sub-
stantial risk of a child being born with serious physical or metal abnormalities is
alone justification for an a b ~ r t i o nClearly,
.~ there is a duty on genetic counsel-
lors and doctors to advise potential parents of risks of genetic illness in any
future offspring and to carry out diagnostic procedures, in order to establish
abnormalities in existing foetuses in utero. In either case, if it can be reasonably
foreseen that the mother may bear a disabled child, the medical advice should
include information that this risk would make an abortion legally justified.
In McKay v. Essex Area Health Authority’ the Court of Appeal affirmed that
if no such advice is given, or it is given negligently, the parents have a cause of

’ Jupp J.’s view in Udale v. Bloomsbury A.H.A. [198312 All E.R. 522 at p. 531, that the
birth of a child is “a blessing and an occasion for rejoicing,” was firmly rejected by Peter
Pain J. in Thake v. Maurice (Q.B.D.) [1984] 2 All E.R.513. The latter pointed out at
p. 526, that “every baby has a belly to be filled and a body to be clothed.”
As in Thake v. Maurice [I9861 1 All E.R. 497, although there had been no negligence
on the part of the surgeon performing a vasectomy, the Court of Appeal held that there
had been a negligent failure to advise the plaintiff of the risks of it being ineffective. c.f.
Gold v. Horingey Health Authoriry, The Times, April 1, 1987, where the surgeon was
found to be neither negligent in the performance of a sterilisation nor in failing to advise
the plaintiff of the risks of the operation failing to be effective.
As in Thake v. Maurice Supra.
The Abortion Act 1967, s.1 provides:
“l(1) Subject to the provisions of this section, a person shall not be guilty of an
offence under the law relating to abortion when a pregnancy is terminated by a
registered medical practitioner if two registered medical practitioners are of the
opinion, formed in good faith-
( a ) . . . ; or
(b) that there is a substantial risk that if the child were born it would suffer from
such physical or mental abnormalities as to be seriously handicapped.”
’[1982] 1 Q.B. 1166.
306
 IS THE “WRONGFUL LIFE”ACTIONREALLY
DEAD? 307

action if their child is subsequently born disabled. There the mother’s claim was
based on incorrect advice that she and her unborn child had been unaffected by
her contact with rubella during her pregnancy. Consequently, she was neither
told of the risks of the child being born with abnormalities, as indeed occurred,
nor of her right under the Abortion Act to have her pregnancy terminated. The
court ‘also accepted that the child too, had a cause of action for injury before
birth, because its disabilities might not have been as great, had the doctor taken
appropriate action against the rubella infection.
A more controversial issue which arose in the McKay case, was whether a
child born deformed. can itself also claim damages from the mother’s medical
advisers, in respect of their failure to advise the mother to consider undergoing
an abortion in view of the child’s likely deformities. Such a claim amounted to
the child’s asserting that it should never have been born at all and, but for the
doctor’s negligence, it would not have been condemned to live a life of misery
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impaired by its disabilities. The Court of Appeal’s firm rejection of the “wrong-
ful life” claim brought by the child in McKay, appeared to terminate once and
for all, speculation that such an action might be pursued successfully in the Eng-
lish courts. Despite this, a fresh examination of the court’s reasons for rejecting
the child’s claim indicates that there remain good grounds for believing that an
action for wrongful life might succeed in the future, notwithstanding that
decision. However, those considering bringing such an action on behalf of a
severely damaged child would have to overcome a number of difficulties.
The first and most fundamental difficulty in bringing such a wrongful life
action today is that the Court of Appeal in McKay rejected the child’s claim that
the doctor owed the unborn child a duty to ensure that its existence was termi-
nated before birth. Nevertheless, such a conclusion is not necessarily fatal to all
wrongful life claims in the future. In particular, it is important to be clear on the
precise scope of the duty of care claimed to be owed by the doctor to the unborn
child. In this context, it is suggested that the wording of the child’s claim against
the doctor and health authority in the McKay case, led the Court of Appeal to
be unnecessarily antagonistic to wrongful life claims in general. The child
claimed that not only did the doctor and health authority fail to perform prop-
erly the appropriate tests for diagnosing rubella and to interpret correctly their
results, but the doctor also failed to inform the mother of the advisability of an
abortion. The consequence of these negligent omissions was that the child was
burdened with a disabled life. These assertions were interpreted by the court as
a claim that the doctor and health authorityowed the foetus a duty to prevent its
birth. The court unanimously agreed that there could be no duty to terminate
the life of such a foetus since it would be contrary to public policy to indicate
that the life of a handicapped child was so much less worthwhile than that of a
normal child, that it was not worth preserving.6
It is submitted that the child’s claim might have received A more sympathetic
consideration from the court, had it concentrated on the doctor’s failure to
advise on the risks to the foetus of its mother having suffered from a rubella
infection. Only Griffiths L.J. appeared to perceive that there is a difference
between claiming that the doctor is under a duty to advise the mother on the

[1982] supra. See particularly Stephenson L.J. at p. 1180.

 308 JOURNALOF SOCIAL
WELFARE
LAW

risks of her child being born defective, thereby allowing her to decide whether to
undergo an abortion in the light of such information, and claiming that the doc-
tor should, not only have advised the mother to have an abortion, but also
ensured that she followed his advice.
“The decision whether or not to have an abortion must always be the
mother’s; the duty of the medical profession can be no more than to advise
her of her right to have an abortion and of the pros and cons of doing so. If
there is a risk that the child will be born deformed, that risk must be
explained to the mother, but it surely cannot be asserted that the doctor
owes a duty to the fetus to urge its destruction. Provided the doctor gives a
balanced explanation of the risks involved in continuing the pregnancy,
including the risk of injury to the fetus, he cannot be expected to do more,
and need have no fear of an action being brought against him.”’
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No such advice or explanation was ever given to the mother in McKay and this
should have been the basis for the child’s complaint.Thus it is suggested that
there would have been a greater chance of the child’s wrongful life claim suc-
ceeding, had it been couched in terms of the doctor owing the foetus a duty to
advise its mother, as its representative, on the likely quality of life that the child
might have, if born. This duty acknowledges the foetus’s own right to have his
decision to live or die, made for him by his mother, in the light of all the avail-
able information on the risks of his being born with defects.’ The mother would
then be in a fully informed position to decide both on behalf of herself and on
behalf of the foetus, whether its existence should be terminated by an abortion
If as suggested above, the courts were to accept the existence of a duty on the
doctor to advise the mother on behalf of her unborn child of the risks of its being
born with defects, the injustice of the doctor avoiding liability altogether would
be avoided. Under the present law, the doctor would escape liability if the
child’s parents chose not to sue him themselves or died without doing so, in
which case the child would be deprived of a sum of money essential to ease his
disabled life.’ In the context of a wrongful life claim, it has been asserted,
“While the law cannot remove the heartache or undo the harm, it can
afford some reasonable measure of compensation towards alleviating the
financial burdens [of bringing up a disabled child]. In declining to do so, it
permits a wrong with serious consequential injury to go wholly unre-
dressed. That provides no deterrent to professional irresponsibility and is
neither just nor compatible with expanding principles of liability in the field
of torts.”19
The need to prevent a wrong to go unredressed was a consideration which
clearly impressed the Californian Court of Appeal, who in Curlender v. Bio-

’Per Griffiths L.J. at p. 1192.

See an argument of this kind formulated by Capron, 79 Columbia L.R. 619
See this and other arguments propounded by L. Hilliard, in (1985) 48 M.L.R.224, at
p. 225.
lo Per Jacobs J. (disenting) in Gleitmm v. Cosgrove 227A 2d. 689 (1967) at p. 703.
 Is THE “WRONGFUL
LIFE”ACTIONREALLY
DEAD? 309

Science Laboratories“ were responsible for the unusual decision to uphold a

child’s wrongful life claim. The court was satisfied that there should be a remedy
for every wrong committed and in their view, there was a clear duty, owed not
only to the parents but also to their as yet unborn children, by those involved in
genetic testing, to use ordinary care in the administration of those tests, in order
to provide information about the genetic defects of the unborn.
But even if the mother’s doctor complies with his duty of care to advise on the
unborn child’s potential disabilities, a more perplexing problem exists in relation
to the scope of the parents’ own duty of care to their unborn child, in the light of
this medical advice. For example, could both parents be liable for choosing to
conceive a child likely to have genetic defects, and could a mother be liable for
refusing to have a defective foetus aborted? In the Curlender decision, the Cali-
fornian Court of Appeal was of the view that there was in general, no fear of
children bringing wrongful life claims against their own parents. This was simply
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because the cause of action was inherently based on the failure of a person who
was under a duty to do so, to inform the prospective parents of the facts needed
by the latter to make a conscious choice not to become parents. Nevertheless,
the court appreciated that a case might arise where, despite a medical adviser’s
due care to warn the parents of likely serious impairments to future offspring,
the latter deliberately continued with the pregnancy. They were satisfied that in
such a case, the parents’ conscious choice would provide an intervening act suf-
ficient to preclude the medical adviser’s liability. Moreover, they took the robust
view that in such circumstances, there would then be no sound element of public
policy to protect the parents from liability to their offspring, for the pain, suffer-
*’
ing and misery caused by their decision. This approach appears to overlook the
mental anguish that parents suffer when reaching such decisions.
In relation to English law, the question whether a handicapped child should
have a right of action against its mother for refusing to undergo an abortion, also
caused the Court of Appeal some anxiety in McKuy. Both the Law Com-
mission,13 and the Royal Commission on Civil Liability and Compensation for
Personal Injury,14had discussed in general terms whether as a matter of prin-
ciple, a child should be able to sue his parents in tort, in respect of ante-natal
injuries. Both bodies expressed great disquiet over the potential disruption to
family life and the bitterness between parent and child, that such actions might
cause and concluded that to allow them would be against public policy. In the
more specific context of the child’s wrongful birth action, Stephenson and
Ackner LL.J. in McKay, referred with approval to this discussion and indicated
that these views constituted a grave objection to such an action lying. It is sub-
mitted however, that such considerations, although meritorious, do not consti-
tute a fundamental objection to acceding to the existence of a duty of care owed
to the foetus. They can be met quite simply by allowing an action to lie against

’’ 165 Cal. Reptr. 477 (1980). The child was born with Tay-Sachsdisease and succeeded in
bringing a “wrongful life” action against the medical testirig laboratories and the phys-
ician.
’* Per Jefferson, P.J. at p. 488, (1980), ibid.
l3 See Law Commission’s Report (Law Com. No. 60) on Injuries to Unborn Children,
1974, Cmnd. 5709.
l4 (1978) Cmnd. 7054, par. 1465, er al.
 310 JOURNAL
OF SOCIAL
WELFARE
LAW

third parties, but by excluding maternal liability, or even joint parental liability,
on the clear grounds of public policy referred to.
A further objection to the existence of an action for wrongful life, was also the
subject of discussion in McKay. The Law Commission had voiced the concern
that claims of this kind might lead to doctors coming under subconscious press-
ure to recommend abortions in doubtful cases, through fear of an action for
damages brought subsequently by a disabled child .I5 This view appeared to
assume that the scope of the doctor’s duty would be specifically to advise the
mother whether to undergo an abortion or not. Nevertheless, as Griffiths L.J.
pointed out, the decision whether or not to have an abortion is made by the
mother and not by the doctor and so in his view, this particular argument was
not a convincing reason for denying the existence of a wrongful life action.’’
Certainly, if as argued above, the doctor’s duty were seen as that of giving the
mother all available information on the risks of the child being born disabled.
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leaving her to make the decision both for herself and for the child, on the basis
of such information, the objection raised by the Law Commission loses its ratio-
nale.
It is clear that the Court of Appeal’s decision in McKuy to reject the child’s
claim, was influenced to a large degree by their consideration of American case
law which was broadly antagonistic to such claims.” The American courts had
been particularly concerned with the difficulties of assessing damages in relation
to such a claim, and the court in McKay agreed with this concern. Indeed.
according to Griffiths L.J.:
“To my mind, the most compelling reason to reject this cause of action [the
child’s wrongful life claim] is the intolerable and insoluble problem it would
create in the assessment of damage. The basis of damages for personal
injury is the comparison between the state of the plaintiff before he was
injured and his condition after he was injured. . . . In a claim for wrongful
life how does the court begin to make an assessment? . . . The plaintiff
says, ‘But for your negligence I would never have been born.’ The court
then has to compare the state uf the plaintiff with non-existence, of which
the court can know nothing; this I regard as an impossible task.”’*
Both Stephenson and Ackner LL.J. were similarly convinced that even if they
were to accept that an action for wrongful life would lie, there were insuperable
difficulties in attempting to assess damages. It is submitted with respect that such
an argument puts the cart before the horse and allows the difficulties of assess-
ment to determine the existence of a right of action. It is clear that the tra-
ditional formula for assessment is unworkable, because of its insistence on there
being a comparison between the plaintiffs state before the breach of duty. when
he did not exist. and after the breach wher? he had been born disabled. But if as

Is Law Corn. No. 60,at p.34.

l6 [1982] supra at p. 1192.
” In particular. Gleitman v. Corgrove 227A 2d 689 (1967), in which the Supreme Court of
New Jersey rejected a “wrongful life” claim based on strikingly similar facts to those in
McKay [ 19821 supra.
Is [I9821supru. at p. 1192.
 Is THE “WRONGFUL
LIFE” ACTIONREALLY
DEAD? 311

reasoned above, the courts were to accept that the doctor and medical auth-
orities owe the unborn child a duty of care to advise the mother of the risks of its
being born with defects, thereby ensuring that its birth is the result of an
informed decision on her part to continue with the pregnancy, then they should
grasp the nettle and adopt a more appropriate formula with which to assess
damages.
In the Curlender case,I9 the Californian court dealt with the assessment of
damages for the child using a formula similar to that used for ordinary cases of
injuries occurring after birth.
“ . . . we reject the notion that a ‘wrongfui life’ cause of action involves any
attempted evaluation of a claimed right not to be born. In essence, we con-
strue the ‘wrongful life’ causc of action by the defective child as the right of
such child to recover damages for the pain and suffering to be endured dur-
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ing the limited life span available to such a child and any special pecuniary
loss resulting from the impaired condition.”20
O n this basis, the court was satisfied that the child could be awarded by way of
special damages, the costs of his care; but since these costs should only be
awarded once, they could only be awarded if the parents’ own claim did not also
seek recovery for the costs of such care. It is suggested that this approach estab-
lished an acceptable formula for attempting to ease the child’s disabled life, in
the light of his having been born without the benefit of an informed decision
made by his parents to continue with the pregnancy. The obvious objection to
this approach is that it assesses damages on the basis of the child’s special needs
due to his disabilities, when the defendant was not responsible for the disabili-
ties themselves, but only for failing to detect their presence or for misinterpret-
ing their effect. Nevertheless this objection should not be allowed to prevent the
action lying.
Even if an English court were to accept the conceptual arguments in favour of
an action for wrongful life, it would also have to be satisfied that such a claim
was not prohibited by the provisions of the Congenital Disabilities (Civil Liab-
ility) Act 1976. The Law Commission’s concern that the existence of such a
cause of action might lead doctors to recommend the performance of unnecess-
ary abortions. led to a deliberate attempt in the 1976 Act to prohibit wrongful
life actions altogether. The Law Commission did not intend that any cause of
action should arise from disablements occurring naturally, for example as a
result of an infection such as rubella, which could not have been caused or pre-
vented by medical intervention. Section 1 of the Act enacted without amend-
ment clause 1 of the bill which was drafted by the Law Commission with this
objective in mind. As they explained, it was “so worded as to import the
assumption that, but for the occurrence giving rise to a disabled birth, the child
would have been born normal and healthy (not that it would not have been born
at all).” Thus an action can only lie if the defendant was responsible for that

IY (1980) supra.
’”(1980) supra, at p. 489.
See Law Corn. No. 60,p. 47.
 312 JOURNAL OF SOCIAL LAW
WELFARE

LLoccurrence.’’z2 Although the child’s wrongful life action in the McKay case was
unaffected by the provisions of the 1976 Act, coming as it did before its oper-
ation, the Court of Appeal recognised the importance of the issue and con-
sidered what the Act’s effect would have been, had it been in force. The Court
of Appeal unanimously agreed that the 1976 Act had successfully implemented
the Law Commission’s intentions and that the child in McKay would have been
barred from bringing an action based on the effects of her mother’s illness, since
it occurred naturally as a result of an infection. They also concluded that the
terms of the Act would prohibit any wrongful life claim brought by a child born
after the Act’s operation.
It is submitted that in reaching such a conclusion on the interpretation of the
1976 Act, the Court of Appeal in McKay, was unduly influenced by the Law
Commission’s expressed intentions and that there are alternative approaches
which were not considered. It is indeed clear that neither section 1, nor indeed
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any part of the 1976 Act itself, refers to liability which might arise in situations
where the disability itself, was neither caused by nor could have been prevented
by medical intervention. Nevertheless, the common law supplements this statu-
tory omission, if as argued above, there is indeed a common law duty on the
doctor to advise the foetus through its mother, of the risks of disabilities result-
ing, for example from an infection. There is however, a further obstacle to the
acceptance of such an approach, in the form of section 4(5) of the 1976 Act
which was, inter alia, clearly intended to counter such an argument by stating
that it “replaces any law in force before its passing, whereby a person could be
liable to a child in respect of disabilities with which it might be born.” Although
the Court of Appeal in McKay was convinced that these words precluded any
wrongful life action being brought on the basis of common law principles after
the operation of the Act, an alternative interpretation is possible. The pro-
visions of section 4(5) can be avoided quite simply because in such cases, the
doctor’s liability does not arise “in respect of disabilities” themselves, since he
had no part in their cause or effect. His liability arises solely due to his failure to
advise on the unborn child’s potential quality of life, in the light of those dkabili-
ties. This approach avoids the provisions of section 4(5) of the 1976 Act and con-
sequently, a claim for wrongful life would be sustainable under the existing
common law.
This discussion shows that there still remain good grounds for believing that a
wrongful life action could be pursued successfully without intervening amending
legislation. If the courts refused to interpret the 1976 Act in the way suggested,
there is considerable merit in arguing that a child suffering from congenital dis-

” Under C.D.(C.L.)A. 1976, s.1, a person will only be liable in tort to a child if two con-
ditions are complied with: (i) if the child is born disabled as a result of “an occurrence”
which affected the mother during her pregnancy, or her or the child in the course of the
child‘s birth, and (ii) if that person was liable in tort to the parent (i.e. the mother) for
that occurrence.
S.1(2) describes “an occurrence” to which the section applies as “one which
(a) affected either parent of the child in his or her ability to have a normal healthy child;
or
(b) affected the mother during her pregnancy, or affected her or the child in the course
of its birth, so that the child is born with disabilities which could not otherwise have
been present.”
 IS THE “WRONGFUL REALLY
LIFE”ACTION DEAD? 313

abilities should be entitled to financial relief from a doctor who failed to advise
its mother on the risks of it being born disabled, and that amending legislation
should make provisio:i for such a claim. As Jefferson J.P. eloquently declared.
“The reality of the ‘wrongful life’ concept is that such a plaintiff both exim
and suffers,due to the negligence of others. It is neither necessary nor just
to retreat into meditation on the mysteries of life . . . The certainty of gene-
tic impairment is no longer a mystery. In addition, a reverent appreciation
of life compels recognition that the plaintiff, however impaired she may be,
has come into existence as a living person with certain rights.”23
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t3 In Curlender v. Bio-Science Laboratories (1980)supra, at p. 488.