How far would you agree that current law on wrongful conception is unfair?

Introduction

The recent House of Lords decision in Rees v Darlington Memorial Hospital NHS Trust has been controversial to say the least. It lays down the law in a difficult yet vital area. The question is that of wrongful pregnancy or birth. By this is meant the sticky moral situation when a pregnancy or birth is the result of usually either a contractual breach or the negligence of another party. How this situation invariably arises is when an individual or couple receives sterilisation surgery. The fault comes about because the surgery is carried out negligently and this results in an unwanted pregnancy, or the residual risk of becoming pregnant is not explained or disclosed to the couple and this failure in the duty of care results in an unwanted pregnancy. Both cases are pretty simple in terms of contract or medical negligence. If a party causes loss by failure to perform a contract or by failing in a duty of care, damages are awardable as a matter of course. However, when the so-called damage, or wrong, is the creation of another human life, all sorts of moral and ethical complications arise that have made judges act with such a degree of uncertainty that the area of law covered is becoming as opaque and uncertain as is possible.

In the above mentioned case of Rees, Lord Hope is quoted not only of describing the decisions as 'hugely controversial', but of saying that it is in need of 'much more study and research'. He expressed the desire to have the Law Commission examine the entire area with a view to enacting clear legislation. It is perhaps unsurprising that in an area so difficult in terms of the ethical and social issues at stake, that the law would become confused. It is unfair to ask numerous judges to come to a united, clear and unwavering standpoint on issues that most of us couldn't even say with certainty what our own personal view was. Therefore, the suggestion that it be settled by legislation is probably sensible. Be that as it may, there is law in this area, and this essay will look at what it says, and evaluate the fairness of this position.

Duty of Care to Sexual Partners: it takes two to tango

Sterilisation, and indeed all forms of contraception, are always likely to lead to ethical debate. There is a wide following for the sincerely held belief that reproduction is the only legitimate or moral reason for sexual intercourse. This is true for many Christian denominations, Muslim denominations and others. From this view point, sterilisation is always unjustifiable unless there are serious therapeutic reasons that make it necessary. While such concerns are no longer causing argument before the law, which clearly sanctions the use of sterilization and other family planning methods so long as they are carried out with the proper consent of the couple or individual undergoing them, they do show the dangers that lurk close to every corner of this topic.
What we are concerned with here, and is arguably far more difficult to answer from an ethical point of view, is that, taking the standpoint that sterilisation is a permissible form of family and life planning, what are we to do when there is a failure in the operation that leads to pregnancy?

In what cases, will doctors be liable for a failed sterilization operation? First of all, as in all such cases, a duty of care will have to be established between the plaintiff and the medical practitioner. This generally does not cause much difficulty between a doctor and patient, but usually it is men who undergo sterilisation operations and women who get pregnant. This is the first issue where fairness comes into play. It might be assumed that it is reasonably foreseeable that if a man relies on negligent advice or treatment as to his sterilisation, that it may well effect his partner or another woman, particularly regarding an unwanted pregnancy.
However the law, after a great deal of argument in the Court of Appeal, is now clear that the doctor's duty of care is to his patient only. In the case of Goodwill v British Pregnancy Advisory Service this was taken to its ultimate conclusion. A man had underwent sterility treatment and had been assured that he could not have children. Relying on this advice, he told a sexual partner three years later that he could not make her pregnant and that therefore, no contraceptive precautions were needed. Relying on this advice she forwent the usual precautions in the belief that no pregnancy could occur. The Court held that she had no cause of action at all, against the medical practitioner who advised her partner as there was no duty of care extending from them to her. This seems like a very unfair decision. On the foreseeability test that is generally used to determine duty of care, it is obvious to anyone that there is a closed group of potential people who will be effected by such advice. This group will be the future sexual partners of the patient concerned. It is therefore not unreasonable to extend the doctor's duty of care to such partners who relying on the advice given to the man, are induced to take less or no precaution against pregnancy. It is also obvious that the purpose of such surgery can only come into effect when the man is having sexual intercourse with a woman, therefore there is even more reason to have her in comprehension when advising the man. The advice is only relevant in the context of a sexual partner and the sexual partner for all other factors of the advice is central to the issue. Therefore why exclude her from the doctor's duty of care? The case of Goodwill operates with great unfairness against women who become pregnant because of negligent sterility treatment given to the man.
It is true that when a couple seek professional advice on family planning together, then any treatment tendered in answer to such a request will entail a duty of care to both partners. However, there are many instances when only one partner will seek advice and will do so individually. If the couple are married or are together, there will often be no harm caused by the rule since whichever partner is owed the duty of care can bring the action. However, if the couple are not together there are very many situations where this will become a live issue. It is generally the case that when a couple not together, married or otherwise, there is an even greater desire to avoid pregnancy. This is because the support of two parents will not be available and the child may not be in a secure family environment. There is also the issue of the financial difficulty of raising a child as a single parent. There will be extra stress, trauma and emotional pain and suffering and there will also be a lack of a committed partner to ease this is, as there would be in the case of an unwanted pregnancy to a couple. Marriage prospects are also a real concern, as it is still the case that those with previous children will have a greater difficulty finding a partner for marriage later on in life. These are genuine, sincere and very real reasons why women or men will wish to avoid pregnancy while not in a stable situation. It is also the situation where the law offers the least protection.
It is surely unfair and there is a strong case to be made for an alteration of the law so that the duty of care owed by a doctor to his patient should, in the limited area of sterility treatment, extend to the patient's sexual partners also. This does not mean all future partners will be awarded damages if they become pregnant, but simply that there will a chance in law to show negligence, loss and causation. At the moment, without the duty of care, there is no link at all between the pregnant woman and the doctor who performed the sterility operation of her sexual partner and this is unfair.

Grotesque Damages

Courts have been willing to award damages in cases of wrongful birth. However, the plaintiff has a difficult case. This is not an area of law that is treated the same as others when it comes to damages. Courts have been unwilling to call the birth of a healthy baby a 'wrong suffered by its parents.' A good example of this judicial stance is given in the Canadian case of Doiron v Orr . In this case, Garett J stated,
'I find this approach to a matter of this kind which deals with human life, the happiness of the child, the effect on its thinking, upon its mind when it realized that there has been a case of this kind, that it is an unwanted mistake and that its rearing is being paid for by someone other than its parents, is just simply grotesque'.
Imagine how many successful product liability suits there would be if judges found damages against a company in favour of an injured customer grotesque. In a similar decision, Udale v Bloomsbury Health Authority the court was asked again to consider damages for the birth of healthy child. This time, while the pain and suffering caused by the negligent sterilization operation, and the resulting loss of earnings, were recoverable in damages, the idea that damages cover the cost of raising the child was again firmly rejected. Jupp J came up with a method whereby the joy of having a child would set off the costs associated with raising it. The joy of the child was not something that had to be proved or looked into at all. According to Jupp J, 'It is an assumption of our culture that the coming of a child into the world is an occasion for rejoicing'.

These types of cases are not normal damage actions. That is undeniable. For instance, look at the simple concept of mitigation of loss. This is a perfectly reasonable rule in law that the sufferer of loss, notwithstanding the fact that he will have a valid claim to damages, should take reasonable steps to ensure that the damage is not larger than it could otherwise be. This is known as mitigation of damages. In most cases this would include normal prudent actions such as seeking good medical advice, putting dangerous products beyond use, having damaged goods repaired before further damage is caused and the like. In wrongful birth actions, mitigation of loss is achieved by abortion. This would reduce the loss suffered dramatically. The resulting claim would only be a fraction of what it would be if the pregnancy continues to birth. Such thoughts highlight the problems of looking at pregnancy and the birth of a child as a financial loss. From this perspective, that's really all any of us are, financial loss to our parents. In the case of

Emeh v Kensington and Chelsea and Westminster Area Health Authority laid to rest the idea that abortion be considered a reasonable form of mitigation of loss.

This shows something of the judges integrity I think. On the one hand they refused to award parents with the costs of bringing up their new baby, as a matter of principle. Then, when a valid legal reason arose to back up their position, namely that such parents did not mitigate their loss, the refused to accept this concept for similar grounds of principle. This shows that the judges are not simply looking for a particular outcome, they are not concerned that parents necessarily pay for the upbringing, what they are concerned about is, that children being born, would be classified under the law as a civil wrong for which those responsible should be punished. If this were allowed, there would be nothing to stop defenders in such actions demanding abortions asa matter of course. Merely a routine procedure to reduce the costs of their mistakes. A mopping up exercise. It is rightfully called grotesque.
In the New Zealand case of Benarr v Kettering Health Authority the court did consider awarding damages for the upbringing of the child and made a substantial award for the funding of private schooling for the child.
In a more recent Scottish case, Mcfarlane v Tayside Health Board the court of first instance said that a healthy baby born from a normal healthy pregnancy was a natural event which could not be regarded as an injury and therefore could not form the basis for a damages claim. He refused to see the life of the child as offsetting the loss, but instead said it wholly compensated the parents for any expenses incurred. The Inner House of the Court of Session rejected this reasoning looking at the case from first principles. Taking an extremely detached view of the whole matter, they said that the parent's legal right to being sterilized had been invaded by the conception of the child. The breach of this legal right had led to loss, or damnum. Therefore, damages were awardable, the child was not a blessing that overrode such financial considerations and there was no public policy reason for ruling against such an award. In the House of Lords, this cold, detached approach was tempered by again denying that the cost of rearing the healthy child could be recovered.

The last case in this regard is Rees v Darlington Memorial Hospital NHS Trust. In this case it seems that the were more concerned with not appearing whimsical. While many of them seemed to be leaning toward awarding damages for the costs of raising the child they could not bring themselves to part with the authority of Mcfarlane, as Lord Bingham pointed out,
'it would reflect no credit on the administration of the law [if a decision in 1999 was overturned in 2003] for no reason … beyond a change in the balance of judicial opinion.'
What the court was willing to do was make an award for £15,000 for the inability of the woman to live her life as she had hoped and planned.

Conclusion

If there is one thing clear when looking at the cases in this area, it is that the law is wavering. There is little certainty or confidence in how the law stands. No one regards it as in a position of equilibrium or clear guidance. It is likely that there will be some few more appeals to the House of Lords in the next couple of years. The questions have not been adequately dealt with, the difficult decisions and stances on principle have not been made, and matters are not at rest.
Looking at the situation from the standpoint of the medical profession who defend the actions, unwilling parents who bring them, the unborn children who are the subject of them, and society as a whole which cannot be separated from them, it is impossible to state that the law is fair. It is not.
However, it may not be possible to achieve fairness in every way, for every party. While the aggrieved parents, insurance companies and medical practitioners might be served fairly by treating the issue as just another damages claim, with all the normal rules designed to bring economic fairness. The unborn child, and society as a whole would not.
It would not be fair to force people to live in a world where babies are no longer seen as a universal joy but also as a legal wrong. If this were to become the case, we would all lose something that we have so far been able to take for granted, and perhaps this is more important than rights in contract and tort.



Bibliography

Books

Mason JK McCall Smith, A. Law and Medical Ethics (2002: 6th ed.)
Beaumont, Wrongful Life and Wrongful Birth, In: McLean, S.A.M (ed) Contemporary Issues in Law, Medicine and Ethics (1996) Dartmouth.
Whitfield, Actions Arising From Birth, In: Kennedy I. Grubb, A. (eds) Principles of Medical Law (1998)

Journal Articles

Teff, The Action For Wrongful Life in England And The United States (1985) 34 Int. & Comp. Law Q. 423.
Harris The Wrong of Wrongful Life (1990) 17 Journal of Law and Society 90.
Fortin, Is the wrongful life action really dead? (1987) Journal of Social Welfare Law 306
J Poole, Time for the Vatican to Bend, (1992) 339 Lancet 1340

Cases

Benarr v Kettering Health Authority [1988] NLJR 179
Mcfarlane v Tayside Health Board [1999] 4 All ER 961 (HL), 1997 SLT 211
Rees v Darlington Memorial Hospital NHS Trust [2003] 4 All ER 987 (HL)
Goodwill v British Pregnancy Advisory Service [1996] 2 All ER 161
Udale v Bloomsbury Health Authority [1983] 1 WLR 1098
Emeh v Kensington and Chelsea and Westminster Area Health Authority [1985] QB 1012
Doiron v Orr (1978) 86 DLR (3d) 719
Rees v Darlington Memorial Hospital NHS Trust [2003] 3 WLR 1091