. 1
( 12)



>>

This page intentionally left blank
The Troubled Pregnancy




Mason looks at the legal response to those aspects of the troubled
pregnancy which require or involve medico-legal intervention. The
unwished-for pregnancy is considered particularly in the light of the
Abortion Act 1967, s.1(1)(d) and the related action for so-called wrong-
ful birth due to faulty antenatal care. The unexpected or uncovenanted
birth of a healthy child resulting from failed sterilisation is approached
through an analysis of the seminal case of McFarlane and associated
cases involving disability in either the neonate or the mother. The
disabled neonate™s right to sue for its diminished life is discussed and
the legal approach to the management of severe congenital disease is
analysed - thus following Baroness Hale in believing that care of the
newborn is an integral part of pregnancy. Aspects are considered from
historical and comparative perspectives, including coverage of experi-
ence in the USA, the Commonwealth and Europe.
Cambridge Law, Medicine and Ethics



This series of books was founded by Cambridge University Press with Alexander
McCall Smith as its first editor in 2003. It focuses on the law™s complex and
troubled relationship with medicine across both the developed and the developing
world. In the past twenty years, we have seen in many countries increasing resort
to the courts by dissatisfied patients and a growing use of the courts to attempt to
resolve intractable ethical dilemmas. At the same time, legislatures across the
world have struggled to address the questions posed by both the successes and the
failures of modern medicine, while international organisations such as the WHO
and UNESCO now regularly address issues of medical law.
It follows that we would expect ethical and policy questions to be integral to the
analysis of the legal issues discussed in this series. The series responds to the high
profile of medical law in universities, in legal and medical practice, as well as in
public and political affairs. We seek to reflect the evidence that many major
health-related policy debates in the UK, Europe and the international community
over the past two decades have involved a strong medical law dimension. Organ
retention, embryonic stem cell research, physician assisted suicide and the allo-
cation of resources to fund health care are but a few examples among many. The
emphasis of this series is thus on matters of public concern and/or practical
significance. We look for books that could make a difference to the development
of medical law and enhance the role of medico-legal debate in policy circles. That
is not to say that we lack interest in the important theoretical dimensions of the
subject, but we aim to ensure that theoretical debate is grounded in the realities of
how the law does and should interact with medicine and health care.

General Editors
Professor Margaret Brazier, University of Manchester
Professor Graeme Laurie, University of Edinburgh

Editorial Advisory Board
Professor Richard Ashcroft, Queen Mary, University of London
Professor Martin Bobrow, University of Cambridge
Dr Alexander Morgan Capron, Director, Ethics and Health, World Health
Organization, Geneva
Professor Jim Childress, University of Virginia
Professor Ruth Chadwick, Cardiff Law School
Dame Ruth Deech, University of Oxford
Professor John Keown, Georgetown University, Washington, D.C.
Dr. Kathy Liddell, University of Cambridge
Professor Alexander McCall Smith, University of Edinburgh
Professor Dr. Monica Navarro-Michel, University of Barcelona
´
Marcus Radetzki, Marian Radetzki, Niklas Juth
Genes and Insurance: Ethical, Legal and Economic Issues
978 0 521 83090 4
Ruth Macklin
Double Standards in Medical Research in Developing Countries
978 0 521 83388 2 hardback 978 0 521 54170 1 paperback
Donna Dickenson
Property in the Body: Feminist Perspectives
978 0 521 86792 4
´ ´
Matti Hayry, Ruth Chadwick, Vilhjalmur Arnason, Gardar Arnason
¨ ´
The Ethics and Governance of Human Genetic Databases: European Perspectives
978 0 521 85662 1
Ken Mason
The Troubled Pregnancy: Legal Wrongs and Rights in Reproduction
978 0 521 85075 9
Daniel Sperling
Posthumous Interests: Legal and Ethical Perspectives
978 0 521 87784 8
Keith Syrett
Law, Legitimacy and the Rationing of Health Care
978 0 521 85773 4
The Troubled Pregnancy
Legal Wrongs and Rights in Reproduction


J. K. Mason
MD (Cantab.), LLD(Edin.), FRC Path, FRSE
Professor (Emeritus) of Forensic Medicine and Honorary Fellow,
School of Law in the University of Edinburgh
CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press
The Edinburgh Building, Cambridge CB2 8RU, UK
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
Information on this title: www.cambridge.org/9780521850759

© John Kenyon Mason 2007


This publication is in copyright. Subject to statutory exception and to the provision of
relevant collective licensing agreements, no reproduction of any part may take place
without the written permission of Cambridge University Press.
First published in print format 2007

eBook (EBL)
ISBN-13 978-0-511-29507-2
ISBN-10 0-511-29507-3 eBook (EBL)

hardback
ISBN-13 978-0-521-85075-9
hardback
ISBN-10 0-521-85075-4

paperback
ISBN-13 978-0-521-61624-9
paperback
ISBN-10 0-521-61624-7

Cambridge University Press has no responsibility for the persistence or accuracy of urls
for external or third-party internet websites referred to in this publication, and does not
guarantee that any content on such websites is, or will remain, accurate or appropriate.
This book is dedicated to the ˜gang™
Graeme, Sharon and Geoff
with great affection.
Contents




page xi
Preface
xiii
Table of cases
xxv
Table of statutes

1 The nature of the troubled pregnancy 1
1
Introduction
9
An overview of medical negligence

2 Voluntary and involuntary termination of pregnancy 14
14
Introduction
16
The fetal persona
24
Maternal status
25
The Abortion Act 1967
35
Prevention and reversal of implantation
38
Negligence and abortion
41
Involuntary termination of pregnancy
49
Conclusion

3 Antenatal care and the action for wrongful birth 53
53
Introduction
54
Late termination of pregnancy
59
Antenatal care and fetal abnormality
66
The principles of antenatal care
79
The development of the wrongful birth action
84
Recompense for wrongful birth in the United Kingdom
97
Conclusions

4 Unsuccessful sterilisation 100
100
Introduction
100
Negligent sterilisation
105
Liability and wrongful pregnancy
112
The case of Mr and Mrs McFarlane
125
Wrongful pregnancy in Australia
138
Lessons from a legal ˜test match™
141
McFarlane under fire
145
A connecting case


ix
x Contents

5 Uncovenanted pregnancy and disability 150
150
Introduction
152
The disabled neonate
163
The disabled mother
183
The proximity test

6 Wrongful neonatal life 188
188
Introduction
189
The wrongful life action in history
204
The perspective in the United Kingdom and the Commonwealth
232
Wrongful life in Europe
237
Conclusion

7 The management of the disabled neonate 241
241
Introduction
245
Principles of management of severe congenital disease
250
The British cases
290
Professional guidelines
293
Neonatal euthanasia

8 Conclusion 297
297
Patterns and anomalies
299
Conflicts of values


303
Bibliography
312
Index
Preface




The origin of this book lies in a series of articles I wrote, mainly for the
Edinburgh Law Review, following upon the ground-breaking House of
Lords ruling in McFarlane v. Tayside Health Board in 2000. I admit to
being amongst those who found that unanimous decision hard to accept
and I followed its fallout with increasing interest. Cambridge University
Press were kind enough to agree to a proposal that we consolidate the
results into a coherent monograph and this has resulted in The Troubled
Pregnancy. It will, however, be apparent that what started as a relatively
simple fancy rapidly became a major academic exercise. The more
I looked at the individual index cases, the more I became involved with
the subject both on a historical and an international basis. The result was
a major expansion of the anticipated text.
Inevitably, then, the book has taken some time to write “ and this has
not been helped by the acquisition of the occasional metal joint and of a
serious bout of two-fingered repetitive strain injury. It has, therefore,
been particularly prone to the well-known hazard that medical law is a
moving target. At the same time, it has provided a welcome opportunity
to reflect on what has gone before or, so to speak, to ˜learn on the job™ “ to
put it in perspective, I still think McFarlane was wrong but I doubt if it was
as wrong as I thought it was five years ago! I must, therefore, ask the
reader™s forgiveness if, at times, it looks as though I have changed my
mind between Chapters 1 and 8 “ indeed, I may well have done so. In the
end, however, I hope I have painted a fair picture of an area of jurispru-
dence in which decisions must be made that cannot, by their very nature,
please everyone.
I have had the enormous privilege of spending some twenty years in the
Edinburgh School of Law where I have received unfailing kindness and
help from my legal colleagues; I owe them, collectively, a debt of gratitude
for giving me what turned out to be a third career. As to this particular
project, I would like to thank Mrs Elspeth Reid, lately editor of the
Edinburgh Law Review, for her encouragement of my research;
Dr Parker Hood and Ms Joelle Godard for their help in the Australian

xi
xii Preface

and European ambiences respectively; Dr Alexis Tattis for early assist-
ance and Dr Sharon Cowan for valuable guidance in the feminist field.
My truly profound thanks, however, go, firstly, to Mr Geoff Pradella, one
of my recent postgraduate students, who undertook some prodigious
research for me and also read and commented on several chapters; and,
secondly “ and as always “ to Professor Graeme Laurie who encouraged
me throughout, read and constructively criticised some chapters and, on
more than one occasion, saved the manuscript from the flames! Finally,
I must thank Cambridge University Press for their forbearance over the
months and for giving me the long-sought opportunity to publish under
the auspices of my alma mater. I hope the book does them justice.

Edinburgh
JKM
August 2006
Table of cases




Australia
Cattanach v. Melchior (2003) 199 ALR 131, 4, 108, 127, 131, 132, 137,
138, 139“41, 162, 163, 177, 182, 213, 216, 217, 297, 301, 302
CES v. Superclinics (Australia) Pty Ltd 38 NSWLR 47, 83, 84, 116, 123,
127, 140“1, 142
Dahl v. Purnell (1993) 15 QLR 33, 127
De Sales v. Ingrilli (2002) 193 ALR 130, 134
Graham Barclay Oysters Pty Ltd v. Ryan (2002) 194 ALR 337, 135
Harriton v. Stephens [2002] NSWSC 461, 8; Harriton v. Stephens, Waller v.
James, Waller v. Hoolahan [2004] NSWCA 93, 213“16, 224 Harriton
v. Stephens [2006] HCA 15, 7, 219, 224
Jaensch v. Coffey (1984) 155 CLR 549, 130
McMahon v. South Eastern Sydney Area Health Service [2004] NSWSC
442, 83
Melchior v. Cattanach [2000] QSC 285, [2001] QCA 246, 126, 127, 156
National Insurance Co. of New Zealand v. Espagne (1961) 105 CLR 569,
138
Nominal Defendant v. Gardikiotis (1996) 186 CLR 49, 133
Perre v. Apand or Amand Pty Ltd (1999) 198 CLR 180, 127, 135
R v. King [2003] NSWCCA 399, 44
Rogers v. Whitaker (1992) 175 CLR 479, (1993) 16 BMLR 148, 69, 70
Sutherland Shire Council v. Heyman (1985) 157 CLR 424, 129
Veivers v. Connolly [1995] 2 Qd R 326, 82
Waller v. James; Waller v. Hoolahan [2004] NSWCA 93, 213, 223,
224 [2006] HCA 16 222“4
Watt v. Rama [1972] VR 353, 218
Webster v. Chapman [1998] 4 WWR 335, 226
X and Y v. Pal (1991) 23 NSWLR 26, 198“9, 218, 224

Canada
Arndt v. Smith (1994) 93 BCLR (2d) 220, 73“5 (1995) 126 DLR (4th)
705, 73, 74 [1997] 2 SCR 539, 75, 82, 225

xiii
xiv Table of cases

Bevilacqua v. Altenkirk (2004) 242 DLR (4th) 338, 101, 107
Bosard v. Davey (2005) CarswellMan 92, QB, 225
Cherry v. Borsman (1990) 75 DLR (4th) 668, 39“40, 228“31, (1992) 94
DLR (4th) 487, 39“40, 200, 225, 226, 228“31
Doiron v. Orr (1978) 86 DLR (3d) 719, 102, 106, 107
Fredette v. Wiebe (1986) 29 DLR. (4th) 534, 229
Kealey v. Berezowski (1996) 136 DLR (4th) 708, 107, 134
Keats v. Pearce (1984) 48 Nfd & PEI R 102, 107
Lacroix v. Dominique (2001) 202 DLR (4th) 121, 225,
226, 230
London Loan & Savings Co of Canada v. Brickenden [1934] 3
DLR 465, 74
McDonald-Wright v. O™Herlihy [2005] OJ No.1636, 216,
219, 225
Mickle v. Salvation Army Grace Hospital (1998) 166 DLR 743, 82, 227
Petkovic alt Petrovik v. Olupona [2002] O.J. no 3411,
191, 226“7
R v. Sullivan and Lemay (1991) 1 SCR 489, 44, 51
Reible v. Hughes [1980] 2 SCR 880, (1980) 114 DLR (3rd) 1, 69, 72, 74,
75, 82, 84
Roe v. Dabbs 2004 BCSC 957, 39, 107
Sharma v. Mergelas, Nowaczyk v. Majewski (1997, unreported) 191, 227
Suite v. Cooke (1995) 58 ACWS (3d) 961, 107
Superintendent of Family and Child Services and Dawson (1983) 145 DLR
(3d) 610, 248, 259, 279
Webster v. Chapman [1998] 4 WWR 335, 226
Winnipeg Child and Family Services (Northwest Area) v. G(DF) (1997)
152 DLR (4th) 193, 51, 226

European courts
Andersson and Kullman v. Sweden App. No 11776/85, 46 DR 251, 145
Bosso v. Italy no. 50490/99, ECHR 2002-VII, 48
Bruggemann and Scheuten v. Federal Republic of Germany (Application no.
¨
6959/75, Commission Decision of 12 July 1977); (1981) 3 EHRR
244) [1977] 3 EHRR 113, 31, 48
D v. UK (1997) 24 EHRR 423, 272
Glass v. United Kingdom [2004] 1 FLR 1019, (2004) 77 BMLR 120,
249, 292
H v. Norway (Application no. 17004/90, Commission Decision of
19 May 1992), 48
Pretty v. United Kingdom [2002] 2 FLR 45, (2002) 66 BMLR 147,
272, 289
Table of cases xv

Vo v. France (Application No. 53924/00) (2004) 79 BMLR 71, (2005)
40 EHRR 12., 9, 44“9, 50, 51, 55, 58, 299
X v. Austria (Application no. 7045/75, Commission Decision of
10 December 1976), 48
X v. United Kingdom (Application no. 8416/79, Commission Decision of
13 May 1980); (1981) 3 EHRR 244, 48

France
X v. Mutuelle d™Assurance du Corps Sanitaire Francais et al (Perruche)
¸
(2000) JCP 2293, 131, 235, 236, 238, 239, 240

Hong Kong
Ho and another v. Chan and others (1991) (Unreported, High Court of
Hong Kong, HCA003490A/1986), 125

Israel
Zeitzoff v. Katz [1986] 40(2) PD 85, 220

Netherlands
X v. Y (Molenaar) The Hague, Court of Appeals, 26 March 2003, 234“5,
236“7, 238, 240

New Zealand
Auckland Area Health Board v. Attorney-General [1993] 1 NZLR 235,
[1993] 4 Med LR 239, 289
Re an Unborn Child [2003] 1 NZLR 115, 40
Harrild v. Director of Proceedings [2003] 3 NZLR 289, 41, 43
Re Z (1982) 3 NZAR 161, 116, 118

South Africa
Castel v. De Greef 1994 (4) SA 408, 210.
Mukheiber v. Raath and Raath (1999) http://www.uovs.ac.za/law/appeals/
26297.htm, 20 January 2000, 119

United Kingdom
A v. A [2003] 1 All ER 669, (2003) 71 BMLR 61, 291
A National Health Service Trust v. D [2000] 2 FLR 677, (2000) 55 BMLR
19, 271“2, 279
AD v. East Kent Community NHS Trust [2003] 3 All ER 1167, (2003)
70 BMLR 230, 186“7
Airedale NHS Trust v. Bland [1993] 1 All ER 821, (1992) 12 BMLR 64,
245, 260, 274, 285
Al Hamwi v. Johnston [2005] Lloyd™s Rep Med 309, 62, 70, 77“9
xvi Table of cases

Alcock v. Chief Constable of South Yorkshire Police [1992] 1 AC 310, [1991]
4 All ER 907, 92, 121
Allan v. Greater Glasgow Health Board 1998 SLT 580, (1993) 17 BMLR
135, OH, 86, 101, 111, 124, 125, 136, 137
Allen v. Bloomsbury Health Authority [1993] 1 All ER 651, (1993) 13
BMLR 47, 93, 104, 105, 130
Anderson v. Forth Valley Health Board 1998 SLT 588, 605, 84, 86“8, 89,
94, 95
An NHS Trust v. D (2006) 87 BMLR 119, 276
An NHS Trust v. MB (a child represented by CAFCASS as guardian ad
litem) [2006] 2 FLR 319, 228, 263, 276, 277, 278, 279, 284“9
Attorney-General™s Reference (No 3 of 1994) [1998] AC 245, 17, 42“4,
234, 299
B v. NHS Hospital Trust [2002] 2 All ER 449, (2002) 65 BMLR
149, 24
Bagley v. North Herts Health Authority [1986] NLJ Rep 1014, 41
Barr v. Matthews (2000) 52 BMLR 217, 29
Baxter v. Baxter [1948] AC 274, 35
Benarr v. Kettering Health Authority [1988] NLJR 179, 111, 120, 130
Blyth v. Bloomsbury Health Authority [1993] 4 Med LR 151, CA, 69
Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582, (1957)
1 BMLR 1, 9, 10“12, 13, 39, 68, 70, 71, 79, 101, 103, 104, 249
Bolitho v. Hackney Health Authority [1998] AC 232, (1998) 39 BMLR 1,
10, 11“12, 13, 71, 75
Bravery v. Bravery [1954] 3 All ER 59, [1954] 1 WLR 1169, CA, 106
Burton v. Islington Health Authority [1993] QB 204, 43, 189, 207, 218
C v. Health Authority [1999] CLY 4002, 76
C v. S [1988] QB 135, [1987] 1 All ER 1230, 21, 27
Caparo Industries plc v. Dickman [1990] 2 AC 605, [1990] 1 All ER 568,
87, 88, 95, 96, 97, 119, 120, 125, 135, 141, 150“1, 155, 160, 181,
183, 185
Chester v. Afshar [2005] 1 AC 134, [2004] 4 All ER 587, 67, 71, 76“7,
135, 179, 221, 239
Chissel v. Poole Hospital NHS Trust [1998] Lloyds Rep Med 357, 39
Crouchman v. Burke (1998) 40 BMLR 163, 39, 104
County Ltd v. Girozentrale Securities [1996] 3 All ER 834, 142
D v. An NHS Trust (Medical treatment: consent: termination) [2004] 1 FLR
1110, 27
Das v. Ganju (1998) 42 BMLR 28, 111
De Martell v. Merton and Sutton Health Authority [1993] QB 204, [1992] 3
All ER 833, 43, 189, 207
Table of cases xvii

Deriche v. Ealing Hospital NHS Trust [2003] EWHC 3104, 76
Donnelly v. Joyce [1974] QB 454, [1973] 3 All ER 475, 186
Egerton v. Brownlow (1853) 4 HL Cas 1, 129
Emeh v. Kensington and Chelsea and Westminster AHA [1985] QB 1012,
95, 110“11, 113, 115“16, 137, 140, 142, 148, 152, 154, 155
Enright v. Kwan (2003) EWHC 1000, 65, 78
Eyre v. Measday [1986] 1 All ER 488, 102, 104
Fallows v. Randle [1997] 8 Med LR 160, 72, 101
Farraj v. Kings Healthcare NHS Trust [2006] EWHC 1228, (2001) 90
BMLR 21, 65
Farrell v. Merton, Sutton and Wandsworth Health Authority (2001) 57
BMLR 158, 92
Fish v. Wilcox and Gwent Health Authority (1992, unreported), on appeal
(1993) 13 BMLR 134, 91, 95
Fitzleet Estates Ltd v. Cherry [1997] 3 All ER 996, [1977] 1WLR 1345,
168
Frost v. Chief Constable of South Yorkshire Police [1998] QB 254, 121
Gaynor v. Warrington Health Authority (2000, unreported), CA, 9
March, 98
Gillick v. West Norfolk and Wisbech Area Health Authority [1986] AC 112,
[1985] 3 All ER 402, 33“4
Godfrey v. Gloucestershire Royal Infirmary NHS Trust [2003] EWHC 549,
93“4, 111
Gold v. Haringey Area Health Authority [1986] 1 FLR 125; revsd [1988]
QB 481, 68, 111
Goodwill v. British Pregnancy Advisory Service [1996] 2 All ER 161,
[1996] 2 FLR 55, CA, 104, 197
Greenfield v. Irwin (a firm) [2001] 1 FLR 899, 86, 143“5, 146, 187
sub nom Greenfield v. Flather, 94, 143
Gregg v. Scott [2005] 2 AC 176, 135
Gregory v. Pembrokeshire Health Authority [1989] 1 Med LR 81, 53, 62,
72“3, 84, 234
Grieve v. Salford Heath Authority [1991] 2 Med LR 295, 41
Groom v. Selby (2002) 64 BMLR 47, [2002] Lloyd™s Rep Med 1, 104,
146“9, 155
Hamilton v. Fife Board 1993 SC 369, 1993 SLT 624, 17, 31, 207,
235
Hardman v. Amin [2000] 59 BMLR 58, [2000] Lloyd™s Rep Med 498,
80, 91“3, 95, 97, 124, 130, 153, 154, 160, 162, 173
Hedley Byrne & Co Ltd v. Heller & Partners Ltd [1964] AC 465, [1963] 2
All ER 575, 125
xviii Table of cases

Hunt v. Severs [1994] 2 AC 350, [1994] 2 WLR 602, 99, 186
Hunter v. Hanley 1955 SC 200, 1955 SLT 213, 9, 10, 39
Jepson v. Chief Constable of West Mercia [2003] EWHC 3318, 2003 WL
23145287, 58
Jones v. Berkshire Health Authority (1986, unreported), 111
Kapfunde v. Abbey National plc and Daniel (1998) 46 BMLR 176, 185
Kay™s Tutor v. Ayrshire and Arran Health Board [1987] 2 All ER 417, 1987
SLT 577, HL, 13
Kelly v. Kelly 1997 SC 285, 1997 SCLR 749, 27, 40
Kuwait Airways v. Iraq Airways Co [2002] 2 AC 883, 238
Lee v. Taunton and Somerset NHS Trust [2001] 1 FLR 419, 86, 91, 96“7,
98, 115, 124, 125, 154, 160
Lindsay v. Glasgow Health Board (1990) The Scotsman, 14 March, 111
Lord v. Pacific Steam Navigation, The Oropesa [1943] P 32, [1943] 1 All
ER, 149
Lybert v. Warrington Health Authority [1996] 7 Med LR 71, CA, 70
Marriott v. West Midlands Regional Health Authority [1999] Lloyd™s Rep
Med 23, 11
Maynard v. West Midlands Regional Health Authority [1985] 1 All ER 635,
[1984] 1 WLR 634, 10, 39, 101
McFarlane v. Tayside Board 1997 SLT 211, OH, 112, 113 1998 SLT 307,
(1998) 44 BMLR 140, IH, 86, 112, 157, 181 [2000] 2 AC 59, 2000
SC 1, HL vii, vii, 84, 90“7 passim, 110, 111, 112“25, 132, 135, 136,
137, 140, 141“5, 149 passim, 151, 156, 157, 158, 161“4, 165,
167“84, 185, 186“7, 216, 298, 301, 302
McKay v. Essex Area Health Authority [1982] QB 1166, [1982] 2 All ER
771, 99, 109, 121, 188, 205“11, 212, 218“19, 222, 225, 231, 236,
237, 238, 268
McLelland v. Greater Glasgow Health Board 1999 SC 305, on appeal 2001
SLT 446, 84, 88“90, 95
Miliangos v. George Frank [1976] AC 443, 169
Millar (P™s Curator Bonis) v. Criminal Injuries Compensation Board 1997
SLT 1180, (1996) 44 BMLR 70, 87
NHS Trust A v. Mrs M, NHS Trust B v. Mrs H [2001] 2 WLR 942, (2001)
58 BMLR 87, 272
Nunnerley v. Warrington Health Authority [2000] Lloyd™s Rep. Med. 170,
95, 98“9
Palmer v. Tees Health Authority [1999] Lloyd™s Rep Med 351, 197
Parkinson v. St James and Seacroft University Hospital NHS Trust [2002]
QB 266, [2001] 3 All ER 97, CA, 130, 136“7, 139, 141, 147,
149, 151, 153“62, 164, 165“6, 169“73, 174“5, 176, 182“3, 241
Table of cases xix

Paton v. British Pregnancy Advisory Service Trustees [1979] QB 276,
18, 40
Pearce v. United Bristol Healthcare NHS Trust (1999) 48 BMLR 118, 70,
71, 85
Penney v. East Kent Health Authority (2000) 55 BMLR 63, [2000] Lloyd™s
Rep Med 41, 11
Pfizer Corporation v. Ministry of Health [1965] AC 512, 103, 234
Pollock v. Lanarkshire Health Board (1987) Times, 6 January, 111
Portsmouth Hospitals NHS Trust v. Wyatt and ors [2005] EWHC 117, 274
Poynter v. Hillingdon Health Authority (1997) 37 BMLR 192, 197
Practice Note (Official Solicitor: Declaratory Proceedings: Medical and
Welfare Provisions for Adults who Lack Capacity) [2001] 2 FLR 158,
100
R (on the application of Axon) v. Secretary of State for Health (2006) 88
BMLR 96, 33“4
R (on the application of Burke) v. General Medical Council (2005) QB 424,
(2004) 79 BMLR 126, QBD, 259, 262, 264, 277 (2005) 85 BMLR
1, CA, 228, 263, 277, 290
R (on the application of N) v. Doctor M and others, [2003] 1 FLR 667,
(2002) 72 BMLR 81, 12, 249
R (on the application of Quintavalle) v. Secretary of State for Health [2003] 2
AC 687, [2003] 2 All ER 113, 61
R (on the application of Rogers) v. Swindon NHS Primary Care Trust [2006]
EWCA Civ 392, 264
R (on the application of Smeaton) v. Secretary of State for Health [2002] 2
FLR 146, (2002) 66 BMLR 59, 17, 18, 36, 37, 38
R v. Arthur (1981) 12 BMLR 1, 57, 253“7, 258
R v. Bourne [1939] 1 KB 687, [1938] 3 All ER 615, 28, 117
R v. Cambridge Health Authority, ex p B [1995] 2 All ER 129, CA, 250
R v. Collins, ex p S [1998] 3 All ER 673, (1998) 44 BMLR 160, 24
R v. Cox (1992) 12 BMLR 38, 295
R v. Croydon Health Authority (1998) 40 BMLR 40, [1998] Lloyd™s Rep
Med 4, 183“5, 184
R v. Dixon, Nottingham Crown Court, 21 December 1995, 29
R v. Dhingra (1991, unreported) Daily Telegraph, 25 January, 37, 38
R v. Hamilton (1983, unreported) The Times, 16 September, 55
R v. Instan [1893] 1 QB 450, 215
R v. Knuller (Printing and Promotions) Ltd [1973] AC 435, 168
R v. Portsmouth Hospitals NHS Trust, ex p Glass [1999] 2 FLR 905, (1999)
50 BMLR 269, 271, 272, 274
R v. Price (Herbert) [1969] 1 QB 541, [1968] 2 All ER 282, 38
xx Table of cases

R v. Secretary of State for Social Services and ors, ex p Hincks (1980) 1
BMLR 93, CA, 118
R v. Shivpuri [1986] 2 WLR 988, 168
R v. Smith (John) [1974] 1 All ER 376, 58 Cr App Rep 106, 29
R v. Tait [1990] 1 QB 290, 50
Rance v. Mid-Downs Health Authority [1991] 1 QB 587, (1991) 5 BMLR
75, 20, 21, 54, 84
Rand v. East Dorset Health Authority (2000) 56 BMLR 39, [2000] Lloyd™s
Rep Med 181, 80, 90“1, 95, 97, 115, 120, 124, 130, 154, 160, 173
Re A (medical treatment: male sterilisation) [2000] 1 FLR 549, 246, 249,
279, 287
Re A [1992] 3 Med LR 303, 291
Re B (wardship: abortion) [1991] 2 FLR 426, 34
Re B (a minor)(wardship: medical treatment) [1981] 1 WLR 1421, [1990]
3 All ER 930 at 931, 188, 209, 228, 247, 252“4, 256, 257“9, 266,
268, 269, 276, 300
Re C (a baby) [1996] 2 FLR 432, (1996) 32 BMLR 44, 270“1, 281, 284
Re C (a minor) (wardship: medical treatment), [1990] Fam 26, [1989] 2 All
ER 782 266, 267“8
Re C (medical treatment) [1998] 1 FLR 384, sub nom Re C (a minor)
(1997) 40 BMLR 31, 243, 263, 284, 291
Re F (in utero) [1988] Fam 122, [1988] 2 All ER 193, 19, 40, 50, 226, 248
Re F (mental patient: sterilisation) [1990] 2 AC 1, 248
Re J (a minor) (wardship: medical treatment) [1991] Fam 33, (1990) 6
BMLR 25, 209, 243, 245, 247, 250, 259, 260, 262, 267“70, 274,
276, 277, 282, 283
Re J (a minor)(wardship: medical treatment) [1993] Fam 15, (1992) 9
BMLR 10, 262“4, 274
Re K (a child) (Medical treatment: Declaration) [2006] EWHC 1007,
[2006] 2 FLR 883, 296
Re L (medical treatment: benefit) [2005] 1 FLR 491, 250, 278, 281, 281“3
sub nom Re Winston-Jones (a child) (medical treatment: parent™s
consent) [2004] All ER (D) 313, 281
Re M (a minor) (wardship: sterilization) [1988] 2 FLR 497, [1988] Fam
Law 434, 101
Re MB (an adult: medical treatment) [1997] 2 FLR 426, (1997) 38 BMLR
175, CA, 24, 26, 27, 79, 226
Re P (a minor) (1982) 80 LGR 301, [1986] 1 FLR 272, 35, 101
Re R (adult: medical treatment) (1996) 31 BMLR 127, 277
Re S (adult: refusal of medical treatment) [1992] 4 All ER 671, (1992) 9
BMLR 69, 79
Table of cases xxi

Re S (adult patient: sterilisation) [2001] Fam 15, sub nom Re SL (adult
patient) (medical treatment) (2000) 55 BMLR 105, 249
Re SG (adult mental patient: abortion) [1991] 2 FLR 329, sub nom Re SG
(a patient) (1992) 6 BMLR 95, 27
Re SS (an adult: medical treatment) [2002] 1 FLR 445, 27
Re T (adult) (refusal of treatment) [1992] 4 All ER 649 at 652“3, (1992) 9
BMLR 46, 24
Re T (a minor) (wardship: medical treatment) [1997] 1 All ER 906, (1996)
35 BMLR 63, 264“6, 283
Re Wyatt [2006] EWHC 319, [2006] 2 FLR 111, 281
Re Wyatt (a child) (medical treatment: parents™ consent) (2004) 84 BMLR
206, 245, 247, 252, 259, 273“81, 282
Re Wyatt (a child) (medical treatment: continuation of order) (2005) 86
BMLR 173, CA, 247, 251, 263, 275, 277, 278, 279
Rees v. Darlington Memorial NHS Trust [2003] QB 20, (2002) 65 BMLR
115, CA, 137, 158, 161, 162, 163, 175, 180, 185, 186
Rees v. Darlington Memorial NHS Trust [2004] AC 309, [2003] 4 All ER
987, 77, 118, 121, 124, 135, 140, 155, 158, 166“82, 186, 298, 302
Richardson v. LRC Products Ltd (2001) 59 BMLR 185, [2000] Lloyd™s
Rep Med 280, 2, 4, 84, 105, 142“3
Robinson v. Salford Health Authority [1992] 3 Med LR 270, 153
S v. Distillers Co. (Biochemicals) Ltd [1969] 3 All ER 1142, [1970] 1 WLR
114, 210
Salith v. Enfield Health Authority [1990] 1 Med LR 333, [1991] 3 All ER
400, (1991) 7 BMLR 1, 83, 90, 95, 111
Scuriaga v. Powell [1979] 123 SJ 406, 39, 105
Sidaway v. Board of Governors Bethlem Royal Hospital and the Maudsley
Hospital [1984] QB 493, [1984] 1 All ER 1018, CA, 67; affd [1985]
AC 871, [1985] 1 All ER 643, HL, 68, 69, 70, 148
Simms v. Simms, A v. A, [2003] 1 All ER 669, (2003) 71
BMLR 61, 291
St George™s Healthcare NHS Trust v. S. [1998] 3 All ER 673, (1998) 44
BMLR 160, CA, 24, 26, 27, 79
Stobie v. Central Birmingham Health Authority (1994) 22 BMLR 135, 100
Surtees v. Kingston-upon-Thames Royal BC [1991] 2 FLR 559, 159
Tameside and Glossop Acute Services Trust v. CH (a patient) [1996] 1 FLR
762, (1996) 31 BMLR 93, 79
Taylor v. Shropshire Health Authority [2000] Lloyd™s Rep. Med. 96, 95,
152“3
Thake v. Maurice [1986] 1 QB 644, [1986] 1 All ER 497, 2, 94, 102, 103,
104, 105, 109, 110, 115
xxii Table of cases

Thomson v. James (1997) 41 BMLR 144, CA, 197
Udale v. Bloomsbury Area Health Authority [1983] 2 All ER 522, 89, 103,
108“10, 113, 117, 136
Venner v. North East Essex Area Health Authority (1987) Times, 21
February, 104
W Healthcare NHS Trust v. KH [2005] 1 WLR 834, CA, 228, 248, 251,
276, 277
Walkin v. South Manchester Health Authority [1995] 4 All ER 132, (1995)
25 BMLR 108, 87, 93“4, 111
Whitehouse v. Jordan [1981] 1 All ER 267, [1981] 1 WLR 246,
HL, 160
Wilsher v. Essex Area Health Authority [1988] AC 1074, [1988] 1 All ER
871, HL, 13
Wisneiwski v. Central Manchester Health Authority [1998] Lloyd™s Rep
Med 223, 11
Worster v. City and Hackney Health Authority (1987) Times, 2 June, 103
Wyatt v. Curtis [2003] EWCA Civ 1779, 72, 247
Wyatt v. Portsmouth NHS Trust and Wyatt (by her guardian) [2005]
EWHC 693, [2005] 2 FLR 480, 275

United States
Akron (City of) v. Akron Center for Reproductive Health 462 US 416
(1983), 20
Albala v. City of New York 420 NE 2d 786 (1981, N.Y.), 197
Amadio v. Levin 501 A 2d 1085 (Pa., 1985), 42, 230
Ashe v. Radiation Oncology Assocs. 9 SW 3d 119 (Tenn., 1999), 74
Atlanta Obstetrics and Gynecology Group v. Abelson 398 S.E. 2d 557
(Ga., 1990), 82
Azzolino v. Dingfelder 337 SE 2d 528 (NC, 1985), 82, 193
Baby K, Re 832 F Supp 1022 (FD Va., 1993), aff™d 16 F 3d 590 (4th
Circuit, 1994), 2660
Bader v. Johnson 732 NE 2d 1212 (Ind., 2000), 7
Becker v. Schwartz 386 NE 2d 807 (NY, 1978), 80, 82, 192, 193, 217
Burke v. Rivo 551 NE 2d 1 (Mass., 1990), 107
Berman v. Allan 404 A 2d 8 (NJ, 1979), 193, 194, 202, 203
Blake v. Cruz 698 P 2d 315 (Idaho, 1984), 193
Bruggeman v. Schimke 718 P 2d 635 (Kan. 1986), 193
BS, In re 74 P 3d 285 (Ariz., 2003), 33
Canterbury v. Spence 464 F 2d 772 (D.C., 1972), 69
Christensen v. Thornby 255 NW 620 (Minn., 1934), 106
Cowe v. Forum Group, Inc 575 NE 2d 630 (Ind., 1991), 193
Table of cases xxiii

Curlender v. Bio-Science Laboratories (1980) 165 Cal Rptr 477, 194“5,
196, 200
Custodio v. Bauer 251 Cal App 2d 303 (1962), 107
Dehn v. Edgecombe 865 A 2d 603 (Md., 2003), 104
Dumer v. St Michael™s Hospital 233 NW 2d 372
(Wis., 1975), 193
Ellis v. Sherman 515 A 2d 1327 (Pa., 1986), 193
Emerson v. Magendantz 689 A 2d 409 (RI, 1997), 156
Enright v. Eli Lilly & Co 570 NE 2d 198 (N.Y., 1991), 199
Estate of Amos v. Vanderbilt University 62 SW 3rd 133
(Tenn., 2001), 198
Fassoulas v. Ramey 450 So 2d 822 (Fla., 1984), 156
Flanagan v. Williams 623 NE 2D (Ohio, 1993), 193
Garrison v. Medical Center of Delaware, Inc. 581 A 2d 288 (Del.,
1990), 193
Girdley v. Coats (1991) Mo. App. Lexis 1065, 107
Gleitman v. Cosgrove, 296 NYS 2d 687 (1967), 191“2, 194, 202“3
Greco v. US 893 P 2d 345 (Nev., 1995), 7, 193
Griswold v. Connecticut (1965) 381 US 479, (1965) 85 S Ct 1678, 35
Grubbs v. Barbourville Family Health Center 120 SW 3d 682 (Ky., 2003),
81, 193
Harbeson v. Parke-Davis, Inc. 656 P 2d 483 (Wash. 1983), 201“2,
203, 239
Hegyes v. Unjian Enterprises, Inc. (1991) 234 Cal App 3d 1103,
197“8, 200
Hester v. Dwivedi 733 NE 2d 1161 (Ohio, 2000), 193
Hickman v. Group Health Plan Inc. 369 NW 2d 10 (Minn., 1986), 81
Janes G v. Casserta 332 SE 2d 872 (W. Va., 1985), 193
Johnson v. University Hospitals of Cleveland 540 NE 2d 1370 (Ohio,
1989), 107
Kassama v. Magat 792 A 2d 1102 (Md., 2002), 189, 192, 193
Kush v. Lloyd 616 So 2d 415 (Fla., 1992), 193
Lazevnick v. General Hospital of Munro County, Inc. 499 F Supp 146
(Md., 1980), 199
Lininger v. Eisenbaum 764 P 2d 1202 (Colo., 1988), 8, 193
McKenney ex rel McKenny 771 A 2d 1153 (NJ., 2001), 81
Michelman v. Ehrlich 709 A 2d 281 (NJ, 1998), 202, 203
Molly v. Meier 679 NW 2d 711 (Minn., 2004), 81
Moscatello v. University of Medicine and Dentistry of New Jersey 776 A 2d
847 (NJ, 2001), 203
Nelson v. Krusen 678 SW 2d 918 (Tex., 1984), 193
xxiv Table of cases

Noccash v. Burger 290 2d 825 (Va., 1982), 82
Ochs v. Borelli 445 A 2d 883 (Conn., 1982), 107, 109
Planned Parenthood of Southeastern Pennsylvania v. Casey 112 S Ct 2791
(1992), 33
Procanik v. Cillo 543 A 2d 985 (NJ, 1988), 202“4, 226
Renslow v. Mennonite Hospital 367 NE 2d 1250 (Ill., 1977), 197, 198, 199
Roe v. Wade 410 US 113 (1973), 98 S Ct 705 (1973), 19, 21, 23, 192,
194, 203
Santana v. Zilog, Inc. (1996) 95 F 3d 780, 42
Scheidler v. National Organization for Women, Inc. 537 US 393 (2003), 14
Schirmer v. Mt. Auburn Obstetrics and Gynecologic Associates, Inc. 802 NE
2d 723 (Ohio, 2003), 65, 81
Schloss v. The Miriam Hospital 1999 RI Super LEXIS 116, 202
Schroeder v. Perkel 87 NJ 53 (1981), 203
Sherlock v. Stillwater Clinic 260 NW 3d 169 (Min., 1977), 94, 107, 111
Siemieniec v. Lutheran General Hospital 512 NE 2d 691 (Ill., 1987),
81, 193
Smith v. Cote 513A2d 341 (NH, 1986), 193
Speck v. Finegold 408 A 2d 496 (Pa., 1979), 201
Stenberg v. Carhart 530 US 914 (2000), 23
Strohmaier v. Associates in Obstetrics and Gynecology 332 NW 2d 432
(Mich., 1982), 193
Superintendent of Belchertown State School v. Saikewicz 370 NE 2d 417
(Mass., 1978), 248
Terrel v. Garcia 496 SW 2d 124 (Tx., 1973), 107
Turpin v. Sortini (1982) 31 Cal 3d 220, 5, 194, 195“6, 199“201, 202
Vicarro v. Milunsky 551 NE 2d 8 (Mass., 1990), 8
Walker by Pizano v. Mart 790 P 2d 735 (Ariz., 1990), 189, 193
Willis: Elliott v. Brown 361 So 2d 546 (Ala., 1978), 193
Willis v. Wu 607 SE 2d 63 (S.C., 2004), 193
Wilson v. Kuenzi 751 SW 2d 741 (Mo., 1988), 81, 193
Wood v. University of Utah Med Ctr 67 P 3d 436 (Utah, 2002), 81
Yeager v. Bloomington Obstetrics and Gynecology Inc 585 NE 2d 696
(Ind., 1992), 199
Zepeda v. Zepeda 190 NE 2d 849 (Ill., 1963), 7, 190, 217
Zehr v. Haugen 871 P 2d 1006 (Ore., 1994), 107
Table of statutes




Australia
Child Support (Assessment) Act (Cth.)
ss.3, 4, 24, 131
Civil Liabilities Act 1936 (SA)
s.67, 141
Civil Liability Act 2002 (NSW)
s.71(1), 141
s,71(2), 141
Civil Liability Act 2003 (Qd)
s.49A, 141

New Zealand
Accident Compensation Act 1972, 118
Health and Disability Commissioner Act 1994, 41
Injury Prevention, Rehabilitation, and Compensation Act 2001, 41

United Kingdom
Abortion Act 1967, 15, 21, 24“32, 53, 85, 208, 209
s.1(1)(a), 25, 26, 27“30, 53, 54, 80, 85, 87, 95, 97, 190, 299, 300
ss.1(1)(b) and (c), 25, 26, 54, 207, 209
s.1(1)(d), 54, 56, 57“8, 122, 154, 161, 258, 299, 300
s. 4, 29
s. 5(1), 20, 55
s.5(2), 29
Age of Legal Capacity (Scotland) Act 1991
s. 2(4), 33
Children Act 1989, text 199, 98, 106, 157
s. 1, 34
ss.2 and 3, 245
s.17(11), 159
s.31, 256

xxv
xxvi Table of statutes

s.100, 246, 262
s.100(3), 246, 264, 265
Children (Scotland) Act
s.1, 115
Children and Young Persons Act 1933
s.1, 256
Children and Young Persons (Scotland) Act 1937
S.12, 256
Concealment of Birth (Scotland) Act 1809, 242
Congenital Disabilities (Civil Liability) Act 1976, 205,
210“13
s.1(1), 198, 200, 212
s.1(2)(b), 212
s.1A, 213, 224
s.4(4), 40
s.4(5), 212
Consumer Protection Act 1987
s.3, 84, 142
Criminal Law (Consolidation) (Scotland) Act 1995
s. 5, 32
Family Law Reform Act 1969
s. 8, 32
Family Law (Scotland) Act 1985
s.1(1)(c), 115
Fatal Accidents Act 1976, 41
Human Fertilisation and Embryology Act 1990, 103
s.5, 290
s.37, 24
s. 37(1), 25, 53
s. 37(4), 20, 53, 55
s.44, 213
Human Rights Act 1998, 264, 271
Sch. 1, 47, 143, 249, 264, 272
Infanticide Act 1938, 242
Infant Life (Preservation) Act 1929, 20, 22, 28, 40
s.1, 53
s.1.1, 72
Limitation Act 1980, 93
s.2. 93
s.11, 111
s.33, 94, 111
Table of statutes xxvii

Medical Act 1983, 290
Medical Termination of Pregnancy Bill, 15
Mental Capacity Act 2005
s.26, 248
Mental Health Act 1983, 186
Offences Against the Person Act 1837, 50
Offences Against the Person Act 1861, 29, 37, 50
s. 58, 29, 36
ss. 58 & 59, 15
Sexual Offences Act 2003
s. 9, 32
Termination of Pregnancy (Jersey) Law, 29

United States
Partial-birth Abortion Ban Act 2003, 23
Unborn Victims of Violence Act 2004, 42
Women™s Health and Human Life Protection Act 2006 (South Dakota),
30, 37

Human Rights Conventions
Convention on Human Rights and Biomedicine, 47
article 2, 48
European Convention of Human Rights, 34, 47“8, 51, 271
Article 2, 46, 143, 272
Article 8, 143,
United Nations Convention on the Rights of the Child, 46
1 The nature of the troubled pregnancy




Introduction
Most academics have difficulty in writing their monographs and I must
certainly count myself among that majority. I can, however, go one stage
further and admit to having had a comparable difficulty in finding a title. In
planning their families, most people would opt for an ideal number of ideal
children. Life, however, is far from ideal and my aim has been to collate and
review the development of the law as it now relates to human reproduction
that has gone contrary to plan “ contrary in the sense that the problems have
strayed beyond those that can be settled within the doctor/patient relation-
ship and which, as a result, require some legal control of the outcome.
Inevitably this implies that there is, at source, some form of conflict
between the three principals “ the pregnant woman, her fetus and her
medical adviser. One™s consequent reaction is to see these as encom-
passed within the mantle of ˜unwanted pregnancy™ and, certainly, a very
large number of pregnancies are genuinely unwanted. At the same time,
by far the greater proportion of these will be resolved between the woman
and her doctor within the abortion clinic and I should make it clear that,
while I consider lawful termination of pregnancy at considerable length in
this book, I do so with some reluctance insofar as I am not concerned with
abortion per se “ and certainly not with abortion on what are often
described as the ˜social grounds™.1 Rather, I am concerned with abortion
as a potential and lawful solution to many of the other problems of the
complicated pregnancy.
Most persons who wish to avoid pregnancy will, however, surely see
contraception as being preferable to abortion as a means to that end.
Given that they are using contraceptive methods under expert medical
guidance and that they believe that, as consumers, they are protected
from the hazards of defective production, they will expect a satisfactory
outcome. The vagaries of contraceptive methods are such, however, that

1
Abortion Act 1967, s.1(1)(a).

1
2 The troubled pregnancy

the possibility of failure is to be anticipated and, when it occurs, the
chances of that failure being attributable to an individual™s negligence
are, in general, very slender.2 The situation changes, however, when a
person has expressed his or her aversion to parenthood by way of the
ultimate contraceptive method “ that is, sterilisation. The intention is
obvious, the persons responsible for the treatment are readily identifiable
and the individual™s right to competent treatment is clearly recognisable.
A pregnancy following sterilisation is, in every way, the paradigm
˜unwanted™ pregnancy which fits well within the stated remit of this book.
This, however, is only half the story. What concerns many couples is
not so much the fact of pregnancy but, rather, the resultant parenthood.
The greater part of that concern will be based on economics “ can we
afford to be the good parents that the child deserves? As Peter Pain J put it
in an early example of unwanted pregnancy:
[E]very baby has a belly to be filled and a body to be clothed. The law relating to
damages is concerned with reparation in money terms and this is what is needed
for the maintenance of a baby.3

Clearly, then, if that extra expense results from someone™s negligence,
there is a prima facie case that compensation is payable. At the same time,
however, it is important to appreciate that, in seeking such compensation,
there is no necessary denigration of the child™s status.
On the other side of the coin, however, a sizeable minority will be
concerned for the type of child they will be parenting. Such concern
may, again, be double-edged. On the one hand, many will want the
˜perfect baby™ and, such are the advances of modern medicine that, while
the so-called designer baby cannot, at present, be produced to order, it is
increasingly possible to ensure that imperfection is predictable “ and,
given the consumer/provider nature of much modern medical practice,
increasing numbers of prospective parents expect those predictions to be
made and to be made available for evaluation. At the same time, perhaps
even more will, either for good or for unsustainable reasons, be positively
worried lest the woman be carrying an imperfect child.
Thus, in many cases involving ˜unwanted™ pregnancy and birth, it is not
a baby that is unwanted but, rather, that particular baby “ or, to put it
more bluntly, a child that is disabled. That is a harsh thing to say “ harsh
because, insofar as it is almost universally held that it is a mark of a
civilised society that all its members are treated equally and are afforded

2
Richardson v. LRC Products Ltd (2001) 59 BMLR 185, [2000] Lloyd™s Rep Med 280 is an
unusual case involving a defective condom which proves the point.
3
In Thake v. Maurice [1986] QB 644 at 666. Discussed in greater detail at p. 102 below.
Nature of the troubled pregnancy 3

the same respect, it touches upon the moral conscience of society as a
whole. This is not to condemn or even criticise those who, say, faced with
an unexpectedly disabled neonate, will initially reject it. In practice, it is
remarkable how few unexpectedly disabled children are committed to
institutional care; rather, it is noticeable that many are accepted into a
loving and caring family. Nonetheless, it is an inescapable fact that, while
the upkeep of children costs money, the upkeep of a disabled child costs
not only more money but also a great deal of hidden expenditure in the
form of extra care and attention. Thus, the economic problems of preg-
nancy are intimately bound with the health of the resultant child.
A further aspect of the ˜unwanted™ pregnancy that deeply troubles the
public conscience is that, so often, the logical disposal of the unwanted is
by way of death. Again, then, we are restrained by an innate adherence to
the principle of the ˜sanctity™ of human life “ a principle that recurs again
and again in the pages that follow. The result may well be a conflict of
conscience “ an unwanted pregnancy may turn into an unwanted abor-
tion. Equally dramatically, an originally rejected disabled neonate has
become deeply loved and a new conflict arises “ that between, on the one
hand, the parents™ desire to support their child and, on the other, that
child™s best interests in abandoning his or her struggle for existence. And
we will see that the judiciary, when asked to decide between these paren-
tal options, have their own problems to overcome “ an added dimension
being that an individual case decision will, as likely as not, be taken to
represent public policy. Thus, the outcome of a case may well depend
upon whether the individual or the majority on the bench are motivated
primarily by moral or by legal principles.
There are, indeed, so many aspects “ and so many nuances within those
aspects “ to the subject matter of this book that I decided it was best
described by the neutral overall term ˜the troubled pregnancy™. Having
said which, I should say that it is implicit “ though, perhaps, not obvious4 “
that I am confining discussion to those troubles which have both an ethical
and a legal dimension. The obstetric management of birth may, for exam-
ple, be negligent and, as a result, be a potent source of neonatal disability;
but it is a purely technical matter and contains no ethical element.
Similarly, the purist might well say that an adulterous pregnancy is likely
to be troubled; but, again, this is not a book on family law.
It is not difficult to appreciate that, as a result of this selection, one of
the main difficulties in writing on it “ and one of the major dilemmas
influencing the courts once they become involved “ has lain in the

4
A pregnancy can, of course, be ˜troubled™ by the various patho-physiological problems
associated with the state and there is no intention to include such purely medical matters.
4 The troubled pregnancy

intensely emotional nature of the subject. Indeed, insofar as the law in this
field has been established over the years on something of an ad hoc basis,
it could be said that its ethical component has proved to be more basic
and significant to its evolution than has strict legal principle. That being
so, it is hard to keep one™s personal interpretation of the ethical conditions
out of one™s analysis of the many variations on the theme of troubled
reproduction that arise “ and it will become evident that this goes as much
for judges as it does for authors. Rather surprisingly, the dilemmas facing
the former have been demonstrated most recently “ and most vividly “ in
the Australian courts5 and this is one reason why I have devoted consi-
derable space to the Australian cases. As to the latter, it cannot be said that
an author™s personal views are in the same league of significance as those
of the judiciary and, while I have some strong views on many of the topics
addressed in the body of the text, I hope I have succeeded in being
reasonably objective. At heart, then, this book concerns the growth of the
common law in these difficult areas rather than an analysis of the
community™s moral response to that lead “ although, from what has been
said, it is clear that the two are, mutatis mutandis, inseparable.
This book can be regarded as a triptych. At one side, and beginning the
saga, we have the troubled conception and its intensely ethical association
with abortion. On the other, and completing the picture, we have the
extension of the troubled pregnancy into the realm of troubled parent-
hood as exemplified by the management of the disabled neonate “ and I
justify this inclusion because, whether intended or unintended, parent-
hood is the natural concomitant of pregnancy. The core of the book,
however, is concerned, as in the title, with the origins and management
of the troubled pregnancy and ˜troubled™, here, has been defined in the
terms which have come into widespread usage over recent years:
* ˜wrongful pregnancy™ “ generally taken as meaning an ˜uncovenanted™

pregnancy6 resulting from defective contraceptive advice or surgical
intervention;
* ˜wrongful birth™ “ which implies the birth of a disabled child as a result

of inadequate antenatal management; and



5
I regard the case of Cattanach v. Melchior (2003) 188 ALR 131 as the most significant
example of the moral/legal debate to be found in the contemporary era.
6
This expression was first used in this context by Kennedy J in Richardson v. LRC Products
Ltd, n. 2 above. It is used in Scots law to describe an event that was not so much
unexpected as one which was not contemplated by the parties concerned and is, therefore,
aptly applied to a pregnancy following, say, a sterilisation operation. I am anxious to
perpetuate it as it avoids applying the pejorative, and often inaccurate, adjective
˜unwanted™ to a child.
Nature of the troubled pregnancy 5
˜wrongful life™ “ essentially, a claim by the neonate that he or she is
*

suffering because his or her mother was wrongly advised as to continu-
ation or termination of the pregnancy.
Since these terms are central to the text “ and because they are not
universally agreed “ it will, I believe, be helpful to discuss their implica-
tions in some detail in this introduction.

Categorisation of the troubled pregnancy
It is, in fact, difficult to establish their precise origins. One thing is,
however, certain “ they were born in the United States7 where the
three-pronged concept of antenatal tort has been around for at least
thirty years.8 It is equally true that the terms have been plagued by
uncertainty as to their meaning since their inception while, at the same
time, they have been subject to conceptual criticism at both academic and
judicial level. In a relatively recent review, Strasser9 goes to some lengths
to describe the difficulties of placing a particular event in a particular cause
of action “ a matter which is, perhaps, of special significance in the United
States with its many different jurisdictions and, consequently, varied
interpretations. Should, for example, a failed sterilisation operation
resulting in the birth of a disabled child be categorised as a wrongful
pregnancy or a wrongful birth? Or, should the extent of the doctor™s
knowledge of the facts make any difference to the nature of the action?
Categorisation, as Strasser points out, allows for different states to allow
or deny different actions while the mere categorisation of an action may
result in the award of different damages in circumstances that are, essen-
tially, similar. In short, ˜jurisdictions do themselves and each other a
disservice when focusing attention on factors other than the negligent
action and the resulting harm™.10 And it cannot be denied that the courts
of the United Kingdom, the Commonwealth and of the European Union
are faced with similar difficulties.


7
There is, of course, a mass of literature on the subject of ˜birth-related torts™. The most
recent, and very helpful, review of the subject that I have found is content to accept their
relevance: Mark Strasser, ˜Yes, Virginia, There Can Be Wrongful Life: On Consistency,
Public Policy, and the Birth-Related Torts™ (2004) 4 Georgetown Journal of Gender and
Law 821“61.
8
For an exhaustive survey of the predominantly 1970s cases, see Marten A. Trotzig, ˜The
Defective Child and the Actions for Wrongful Life and Wrongful Birth™ (1980) 14 Family
Law Quarterly 15“40.
9
n. 7 above.
10
ibid., at 823. It will be seen later, for example, that California recognises only two relevant
torts “ actions for wrongful life brought by the resultant child and actions for wrongful
birth brought by the parents (Turpin v. Sortini (1982) 31 Cal 3d 220).
6 The troubled pregnancy

As to uncertainty within these terms, first, both ˜wrongful conception™
and ˜wrongful pregnancy™ are used fairly indiscriminately to describe the
situation in which a child is born to a couple who did not want any or any
more children and had received expert advice or treatment designed and
expected to prevent that happening. Although it is clear that the two
represent a continuum, I would prefer, in the context of ˜a wrong done™,
to speak only of wrongful pregnancy. Conception, per se, does a woman
no harm “ countless pre-implantation embryos are lost without their
existence being noted.11 Only the resulting pregnancy can cause the
woman harm or wrong and, to that extent, ˜wrongful pregnancy™ can
hardly be said to be a misnomer “ although we will see that it may not
be accepted as a term of art.
The same cannot be held in respect of an action for ˜wrongful birth™
which is raised by and/or on behalf of the parents and is, here, taken to mean
the birth of a disabled, but otherwise wanted, child which could have been
prevented had the defect been detected in utero and had the woman, as a
consequence, elected for a legal termination of her pregnancy.12 Clearly,
there is nothing wrongful about the birth of a disabled child “ indeed, it
could be held that, from the implications alone, the retention of the
phrase does a disservice to medical jurisprudence as a whole. What are
wrongful “ and, as we will see later, something may be wrong but still not
actionable “ are the defective antenatal care and the resulting denial of
choice to the pregnant woman. Thus, ˜wrongful birth™ is not only a
misnomer but the action itself fully represents the dangers of particular-
ising a general principle “ that of medical negligence. This is certainly not
a new criticism. As long ago as 1979, we have the influential American
academic, Professor Capron, writing:
[I]t would be easier to recognize a case arising from the birth of a child with a
preventable genetic defect as one for appropriate general and special damages to
parents and child along the customary lines of tort law if our vision were not
impaired by the distorting lenses of ˜wrongful life™.13



11
Some commentators positively distinguish a ˜wrongful conception™ from a ˜wrongful
pregnancy™ when the former has been negatived by lawful termination “ and this seems
a reasonable distinction as the argument as to the allocation of damages may be very
different. Even so, any dolor derives from the pregnancy. See Bernard Dickens, ˜Wrongful
Birth and Life, Wrongful Death before Birth and Wrongful Law™ in Sheila A. M. McLean
(ed.), Legal Issues in Human Reproduction (Aldershot: Dartmouth, 1989), chapter 4.
12
It has to be remembered that, while the majority of jurisdictions world-wide now allow for
termination of pregnancy on the grounds of maternal health, not all accept fetal disability
of itself as a justification.
13
Alexander Morgan Capron, ˜Tort Liability in Genetic Counselling™ (1979) 79 Columbia
Law Review 618“84 at 634, n. 62. This quotation, of itself, proves the potential confusion
Nature of the troubled pregnancy 7

An outstanding recent criticism of the phrase has been voiced by the
Supreme Court of Indiana:
It is unnecessary to characterize the cause of an action here as ˜wrongful birth™
because the facts alleged in the Johnsons™ complaint either state a claim for
medical malpractice or they do not. Labeling the Johnsons™ cause of action as
˜wrongful birth™ adds nothing to the analysis, inspires confusion, and implies the
court has adopted a new tort.14
And I would go further “ it seems to me that the phrase ˜wrongful birth™ is
frankly confusing as it is applied in the present context.
Yet, of these three basic concepts, it ˜wrongful life™ that has attracted
the greatest controversy and criticism “ and it is not only inevitable but it
is, surely, right that this should be so. An action for ˜wrongful life™ is
brought by a disabled child who is claiming, basically, that he or she
would not have achieved a separate existence were it not for the negli-
gence of the doctor15 managing the pregnancy.16 The clear implication of
the phrase is that there must be a corrective ˜rightful death™. It, therefore,
takes us immediately into the moral and emotional minefields of fetal
and, by extension, neonatal euthanasia where, for many, the values
underlying the importance of human life and the protection of the vulner-
able are challenged.17 It is small wonder that judicial opinions have been
influenced by non-legal considerations when dealing with such claims and
that the relevant jurisprudence has become distorted. The backlash has,
accordingly, been considerable “ we have, for example, the Australian High
Court Judge Kirby18 quoting the label of ˜wrongful life™ as ˜unfortunate™,19


as, interestingly, the nomenclature at the time was different. ˜Wrongful birth™ was said
to be associated with the unplanned birth of a healthy child; ˜wrongful life™ concerned
the child who was socially or, later, physically disabled and stemmed from the claim of
being disabled by virtue of being born illegitimate: Zepeda v. Zepeda 190 NE 2d 849
(Ill., 1963).
14
Bader v. Johnson 732 NE 2d 1212 (Ind., 2000) at 1216, referring back to similar criticism
in Greco v. United States 893 P 2d 345 (Nev. 1995) at 348. The additional point in Bader
v. Johnson is that it was argued from the other side that actions for wrongful birth were
barred in Indiana. I admit to having chosen to quote Bader for the additional reason that it
is the only case I know that refers to ˜the troubled pregnancy™ (at 1219).
15
The largely theoretical possibility of an action against the parents is discussed at p. 195
below.
16
It will be seen that there is very little conceptual difference between actions for wrongful
birth and those for wrongful life. The important practical difference is that the former is
bought by the parents and the latter by the disabled child. The theory and practice of
each, thus, overlap and the two actions are commonly taken in parallel.
17
As Harvey Teff put it many years ago: ˜One is not instinctively attracted to the cause of
someone who appears to be impugning life itself™, in ˜The Action for ˜˜Wrongful Life™™ in
England and the United States™ (1985) 34 International and Comparative Law Quarterly
423“4, at 425.
18
In Harriton v. Stephens [2006] HCA 15 at [8]. 19 Quoting Teff, n. 17 above, at 425.
8 The troubled pregnancy

˜ill-chosen™,20 ˜uninstructive™21 and ˜misleading and decidedly unhelpful™.22
In his view, its use, even as a shorthand phrase should be avoided “
the underlying reason being that, while a neonatal action in negligence
might sound, an action under the title of wrongful life is more or less
doomed to failure (see Chapter 7).
In short “ and we will expand on the theme throughout this book “ the
three adopted pre-natal torts have been widely criticised almost since their
inception. Why should this be so? I doubt if one can answer this better than
by quoting from the Supreme Judicial Court of Massachusetts:
These labels are not instructive. Any ˜wrongfulness™ lies not in the life, the birth,
the conception, or the pregnancy, but in the negligence of the physician. The
harm, if any, is not the birth itself but the effect of the defendant™s negligence on
the parents™ physical, emotional, and financial well-being resulting from the
denial to the parents of their right, as the case may be, to decide whether to bear
a child or whether to bear a child with a genetic or other defect.23

Thus, even if it is only to state the obvious, the factor common to all
three expressions is negligence on the part of health carers. If, then, we
are to derive coherence from what is, essentially, a trans-Atlantic formu-
lation “ and if, perhaps, we could prevent its permeating the United
Kingdom jurisprudence in its present state24 “ the logical approach is to
regard all three as mere facets of medical negligence and apply the general
rules of tort law rather than to presume we are dealing with unique
entities which must be disentangled from one another. This study has
convinced me that this is the correct approach despite the fact that,
almost in order to make the point, and in deference to popular usage,
I am still using the three categories as a framework for discussion through-
out the text.
That being the case, it is inevitable that, despite the fact that much of it
is common knowledge, we must, by way of a preface, take a brief look at
the current state of the general law related to medical negligence. Those
aspects which are of particular significance in pregnancy will be addressed
in the relevant chapters.



20
Quoting Joseph S. Kashi, ˜The Case of the Unwanted Blessing: Wrongful Life™ (1977) 31
University of Miami Law Review 1409“32 at 1432, although it is clear that this author
interpreted ˜wrongful life™ in a wider sense.
21
Harriton v. Stephens [2002] NSWSC 461 at [8].
22
Quoting Lininger v. Eisenbaum 764 P 2d 1202 (Colo., 1988) at 1214.
23
Viccaro v. Milunsky 551 NE 2d 8 (Mass., 1990) at 9, n. 3.
24
We will see that, although the formula has gained some acceptance, it is certainly not
consistently implemented “ see, for example, the ˜post-McFarlane™ cases discussed at
p. 90 below.
Nature of the troubled pregnancy 9

An overview of medical negligence
In order to prove medical negligence, it is, as is well known, necessary to
demonstrate the three essential elements:
* that the health care professional owed the complainant a duty of care “

and this is a legal duty which is a matter for the courts to decide;
* that there was a breach of that duty to the extent that the standard of

care provided fell below the standard required by the law “ thus,
although, by definition, this is a legal concern, the courts must, and
do, defer to professional standards; and
* that, because of that breach, the patient suffered a legally recognisable

harm “ the problem of causation.
This book makes no pretence of covering the subject of medical neg-
ligence fully. At this point, little more will be attempted other than to
isolate some aspects which have particular relevance to the troubled
pregnancy. Their more detailed application will, hopefully, become
clear in the following chapters.

The duty of care
Normally, there would be little to say under this heading in the context of
medical practice. A woman (or a man) requires medical help; she seeks
this from a registered medical practitioner;25 the practitioner, by agreeing
to see her in that capacity, assumes a duty of care. On the face of things,
that settles the matter.
However, the situation is surprisingly unclear in the case of the preg-
nant woman where the question arises as to whether the practitioner owes
a coincident duty of care to the fetus. The unborn child, one feels, must
have rights of some sort and certainly has interests26 “ but can a person
owe a duty of care to a fetus which has no legal persona? The topic arises
in several chapters including, paradoxically, that concerned with a fetal
interest in non-survival.

The standard of care
The basics of the modern standard of care required by the law origin-
ate in England and Wales in Bolam27 and in Scotland in Hunter

25
It is to be remembered that it is the fact of registration from which the doctor derives both
privileges and responsibilities.
26
The question is crystallised in the European Court of Human Rights case of Vo v. France
(2004) 79 BMLR 71, for which see p. 44 below.
27
Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582, (1957) 1 BMLR 1.
10 The troubled pregnancy

v. Hanley.28 Both arrive at much the same conclusion and it will be con-
venient for present purposes to consider only the former and to refer to the
˜Bolam test™.

The Bolam test
The Bolam test, which, rather surprisingly for a principle that has had
such an impact on medical jurisprudence, originated in a judicial instruc-
tion to a jury at first instance,29 is in two parts. The first deals with
standards of care in general:
The test is the standard of the ordinary skilled man exercising and professing to
have that special skill. A man need not possess the highest expert skill at the risk of
being found negligent. It is well-established law that it is sufficient if he exercises
the ordinary skill of an ordinary competent man exercising that particular art.30

This, then, defines the professional standard of care which, perhaps
surprisingly, is of relatively minor concern to us here. The second part,
however, runs:
A doctor is not guilty of negligence if he has acted in accordance with a practice
accepted as proper by a responsible body of medical men skilled in that particular
art.31
This delineates the legal standard of care owed by the health care worker to
his or her patient and it is a test that, almost perversely, has been accepted
unreservedly by the courts of the United Kingdom for almost half a
century “ and has even been extended from the realm of duty to that of
causation.32 It is a useful test in that it provides a simple benchmark for
the courts, whose officers seldom have medical training. Clearly, how-
ever, it exposes the possibility that the medical profession is dictating the
law to the courts and this cannot be a good thing when medical practi-
tioners are parties to the relevant actions. Moreover, it is open-ended
insofar as it does not, for example, limit the ˜responsible body of medical


. 1
( 12)



>>