Damages for the "unwanted" child: time for a rethink?

Dr Nicolette M Priaulx Lecturer, School of Law, Keele University If a healthy child born as a result of clinical negligence is a “blessing” which should not resound in child maintenance damages, can one create an exception for the birth of a disabled child? If so, should the law then permit a further exception for the disabled parent of a healthy child? And, even if the healthy child is not the proper subject-matter of damages, is this the same as saying that those who actively sought to avoid parenthood suffer no loss at all? Over the last six years, such questions have arisen in the English courts following the House of Lords ruling in McFarlane v Tayside Health Board 1 in 1999 that parents of an unplanned but healthy child were no longer entitled to recover damages reflecting the costs of its maintenance. That McFarlane did not straightforwardly apply to cases where either the child or the parent is disabled, not only led to the lower courts creating a series of difficult exceptions, 2 but culminated in a second House of Lords ruling on this subject in the case of Rees v Darlington Memorial Hospital NHS Trust in late 2003. 3 While various commentators reflecting on Rees have claimed that English law in relation to unplanned births is now something of a “mess”, as this note considers, the most problematic aspect of the law in this area has been the differential responses of the courts to cases involving “disability”. Questioning the legitimacy of such an approach and noting the need for a full resolution of the issue, the article goes on to examine the most significant and pressing question in this field for lawyers and clinicians alike: what is the future for wrongful birth and wrongful conception claims?