Wrongful Birth claims (also known as unwanted pregnancy claims) are brought about by parents from the birth of a child who, but for the negligent treatment, would not have been born. Wrongful Life claims are cases that are brought about by a severely disabled child (via their legal guardian) as a result of a negligent party failing to prevent their birth or, in recent years, even conception. You may be surprised to note that these types of claims are actually quite common despite it being a difficult concept to comprehend for many.
Failed sterilisations or vasectomy procedures can often be the cause of a wrongful birth claim. If the procedure failed and, as a result of which, you became pregnant, this may result in an unplanned pregnancy. The financial aspect of such a claim would be made up of the financial losses suffered to include any loss of earnings that also ensued. As this is essentially an unwanted pregnancy, as the child would not have been conceived had the procedure been undertaken to an acceptable standard, it is likely you would also be able to claim for the pain and emotional distress of having to go through the same, especially if the pregnancy is terminated. It is very clear within this area of the law however that the costs of raising the child cannot be claimed for unless the child is born with a disability. If the child is born with a disability then they are also able to bring a claim for themselves which would be classed as a ‘wrongful life’ claim.
Other common ‘wrongful birth’ claims may consist of routine screening tests to include Down’s Syndrome, Edward’s Syndrome and Patau’s Syndrome either not being carried out after a parent has requested the same, or the parent being told incorrectly or not at all of the results.
Figures show that in the year 2019/2020 the NHS paid out a total of £29,802,769.00 in damages in 30 cases for both wrongful birth or unwanted pregnancy.
Wrongful life claims have traditionally been dismissed by the Courts as it is incredibly difficulty to put a value on life and it has been said that life, whether it be with a disability or not, is more precious than non-life. Within such cases, the child is not claiming that the negligent party caused their disabled state but rather alleges that the act of negligence was in the failure to report to the parents that their child could be disabled or deformed, culminating in an unhappy existence for the child. Had the parents been reliably or correctly informed of the risks associated with the birth of their child then they would have the option to terminate the pregnancy at an earlier stage.
There are, of course, ever changing social attitudes and advances in contraceptive and genetic technologies which means that there are now more and more tests and information available for parents to make an informed decision on when to conceive, if at all, and when to terminate a pregnancy for the wellbeing of their child, as well as themselves. In a high profile case in 2020, the High Court revisited the Wrongful Life issue with the general question of ‘Can a disabled person ever claim damages on the basis that they would not have been born but for the defendant’s negligence?’. After much deliberation the Court answered ‘yes’. Causation must be proven however and a link between the Defendant’s negligent advice / failure to inform the parents and the child’s resulting deformities / disabled state must be found in order for the claim to pass this first hurdle and not be thrown out.
Here at Hodgkinsons Solicitors, we deal with a number of Clients all over the country in relation to Medical Negligence Claims, so, whether you are located in the East Midlands, rural Lincolnshire or the anywhere else in the country we can help you with your negligence claim. To discuss your potential claim with our specialist Medical Negligence Solicitors, do not hesitate to call us on 01754 897150 or submit a contact form and a member of our specialist Team will be in touch.