<<

. 12
( 12)



220
n. 215 above.
221
Tony Sheldon, ˜Killing or Caring?™ (2005) 330 British Medical Journal 560.
Management of the disabled neonate 295

Needless to say, the Groningen proposals have attracted considerable
criticism. The majority of these will be well known to anyone who has
considered the euthanasia debate in general. The counter-arguments are
amplified in the case of children and have been well described in a short,
but telling, article from the Israeli Center for Medical Ethics.222 The
gravamen of the argument lies in the fact that, whereas the case for
adult euthanasia is founded on respect for human autonomy, no such
justification is available in the case of the infant who has not reached the
age of capacity. Conversely, even the Dutch currently repudiate surrogate
consent to euthanasia in adults. Why, then, should we countenance it in
infants?223 Significantly, in my view, Jotkowitz and Glick question the
whole ethos of guidelines and protocols:

[A] detailed protocol with internal checks and balances tends to minimise the
impact of what we feel is a morally unacceptable act.224

Or, in other words, given such a protocol, the temptation is to ask if a
child fits within its terms rather than to consider that child™s condition as
an individual problem ab initio. In the end, however, they resort to the
˜slippery slope™ argument “ and who should blame them, given the
suspect history of adult euthanasia in the Netherlands?225
At the time of writing, neonatal euthanasia has not been seriously
mooted in the United Kingdom nor has a declaration of its lawfulness
been sought from any court. Were such a case to be brought, it would, in
present circumstances, have to be rejected. The problem remains as to
what would be the outcome were criminal charges to be brought against a
paediatrician who, say, followed the Groningen Protocol. Would he or
she follow the path of Dr Arthur “ whose case we have discussed at length
at p. 254 “ or that of Dr Cox,226 who injected his suffering adult patient
with potassium chloride and was found guilty of attempted murder?



222
A. B. Jotkowitz and S. Glick, ˜The Groningen Protocol: Another Perspective™ (2006) 32
Journal of Medical Ethics 157“8. It is only fair, however, to refer to a very recent article
that is strongly supportive of the protocol: B. A. Manninen, ˜A Case for Justified
Non-voluntary Active Euthanasia: Exploring the Ethics of the Groningen Protocol™
(2006) 32 Journal of Medical Ethics 643“51.
223
The BMA (n. 201 above) firmly believes that parents are generally the best judges of
their young children™s, and the family™s, interests; this, however, cannot be applied to
euthanasia which is not considered as a management option.
224
n. 222 above, at 157.
225
See, for example, the disquieting article by L. Pijnemborg, P. J. van der Maas,
J. J. M. van Delden and C. W. M. Looman, ˜Life Terminating Acts without Explicit
Request of Patient™ (1993) 341 Lancet 1196“9 “ the reason for concern lies in the title.
226
R v. Cox (1992) 12 BMLR 38.
296 The troubled pregnancy

Fortunately, the question is hypothetical. Nonetheless, I should, perhaps,
fly my colours for the last time and quote again, and with approval, from
Jotkowitz and Glick:
We agree that in certain circumstances it is reasonable and desirable to limit the
level of care in these severely disabled and suffering infants: but the direct taking
of human life crosses a major boundary line.


Addendum
The case of Baby K227 has been reported as this book is at the page-
proofing stage and justifies the forewarning offered in the last lines of
p. 289. K was a child aged 5½ months suffering from congenital myo-
tonica dystrophy “ a severe muscle wasting disease. Her situation was,
therefore, very comparable to that of Baby MB which we have discussed
at p. 284. She was very severely disabled, lying somewhere between
categories 3 and 4 of those set out by the Royal College of Paediatrics
and Child Health as justifying consideration of withdrawal of treatment “
for which, see p. 291. The responsible NHS Trust sought a declaration
enabling the withdrawal of nutrition and fluids and this was granted
by the court as being in the child™s best interests. Since this decision
seems to be one in direct contrast to that reached in A NHS Trust
v. MB, it is worth outlining some preliminary thoughts as to the points
which might distinguish the cases. These include: K was considerably
younger than M; she was being fed by total parenteral nutrition rather
than by way of a less invasive and less technically complicated feeding
by gastrostomy; she was undoubtedly dying from a combination of sep-
ticaemia and liver failure; due to the nature of her condition, she had
less, if any, evidence of cognitive function than had MB; and, unusually,
the parents, the guardian and the local authority were in complete agree-
ment with the Trust as to the course to be adopted. Sir Mark Potter P very
appropriately reiterated (at para [51]) the widely agreed comment that
˜all cases of this king are highly fact sensitive™.


227
Re K (A child) (Medical treatment: Declaration) [2006] EWHC 1007, [2006] 2 FLR 883.
8 Conclusion




The abiding impression following the completion of this book is that the
analysis of the legal approach to the management of the troubled preg-
nancy discloses a mix of well-established patterns which, nonetheless,
include some difficult anomalies.

Patterns and anomalies
In general, the decisions reached by the courts on an international scale
have demonstrated a surprising consistency over the years which is only
now being challenged. Surprising, first, because the various jurisdictions
that we have considered have approached the available actions either de
novo or have relied heavily on experience in the United States which,
inevitably in view of the large number of separate judiciaries involved and
the wide cultural differences imposed by the size of the country, has
provided a number of possible solutions to virtually every problem raised.
And, second, because many of the landmark decisions made, have turned
as much on the judicial interpretation of the moral issues involved as on
anything else. A remarkable corollary to this has been the way in which
public opinion, in the form of elected parliaments, has responded quickly
whenever the courts have stepped out of the established line in the
name of legal principle. Thus, we have seen a knee-jerk reaction on the
part of the French Parliament to the acceptance by the highest court of a
˜wrongful life™ action on the part of a disabled neonate.1 Similarly, the
Parliaments of New South Wales and Queensland rapidly closed the door
on actions involving wrongful pregnancy after the High Court of
Australia had opened it widely in a case involving a negligent failure to
sterilise a woman.2
Yet, as I have suggested, this apparently regular pattern contains a
number of anomalies which, ultimately, derive from the difficulty of


1 2
See p. 233. Cattanach v. Melchior (2003)199 ALR 131 (see p. 128).

297
298 The troubled pregnancy

accommodating the normal principles of tort law within a setting that is
charged with emotions ranging from an ingrained respect for the ˜sanc-
tity™ of human life to an equally ingrained resistance to its ˜commodifica-
tion™. Courts across the world have struggled with this problem and, as a
result, we are left with a jurisprudence which, although it cannot be said
to be ˜bad law™, still demonstrates a lack of coherence.
My strong impression is that, because of this ambivalence, courts have
a tendency to look at the end results of negligence rather than at the
primary reasons for actions that result from a troubled pregnancy. An
example lies in the simple situation of the wrongful pregnancy. As things
stand, if each of two ˜sterilised™ women unwillingly bears a child and one
of the children is healthy while the other is, unexpectedly, disabled, the
mother of the latter stands to receive some recompense while the former is
left to her own devices. Yet the negligence is the same in each case. There
may be a case for a differential assessment of the quantum of damages but
such an exercise becomes illogical if the basic quantum is nil “ as it was
established in McFarlane.3 This anomaly may be, at least, smoothed over
by Lord Bingham™s ˜conventional award™ “ which I have attributed to ˜the
conscience of the Lords™.4 We will have to wait and see if that will
materialise for, even if it is applied across the whole spectrum, there is
still the hurdle of the level of the award to overcome.
We can also point the finger at the seemingly bizarre distinction that is
drawn between wrongful birth and wrongful life actions. How can it be
anything other than anomalous that we should compensate the person
who is given the wrong message to carry “ the mother who is misinformed
as to the risk of a disabled fetus “ and yet to deny the claims of one who
was never given any warning message “ that is, the consequently disabled
neonate? The conceptual difficulty here is that, while there are two
offended parties, there has been only one offence “ the failure to deliver
the correct message. Can it, then, be seen as fair to place the tortfeasor in
double jeopardy? Currently, insofar as the wrongful birth action is widely
accepted and that for wrongful life is equally widely refused, the answer is
˜no™. But, again, one can ask “ is this right when, in fact, the ˜injuries™ are
quite distinct? The parents are claiming for the costs of rearing a disabled
child. The neonate, however, as we have seen, is claiming compensation
for the pain and suffering of a diminished life resulting from negligent
advice. Provided the heads of damage are kept quite distinct, it seems


3
McFarlane v. Tayside Health Board (2000) 2 AC 59, 2000 SC 1 which occupies the greater
part of Chapter 4.
4
Rees v. Darlington Memorial Hospital NHS Trust [2004] AC 309, see p. 176.
Conclusion 299

right that the recompense should be allocated appropriately “ but only the
European continental courts seem, thus far, to have acknowledged that.5


Conflicts of values

The fetal status “ again
Deep down, at source, I suggest that there are two main concerns that
combine to confuse the courts in their search for coherent solutions to the
troubles of pregnancy. First is what many would regard as the prime
anomaly “ the legal insistence that the fetus has ˜no rights™. It is a truism
that one marker of the civilisation of a society is the quality of the
protection it provides for its vulnerable citizens. This, of course, has
been evident over the past decades throughout advanced societies within
which such protection has been provided progressively to those groups
in need “ that is, until we come to possibly the most vulnerable of all
sections of society, the unborn child, whose survival is still determined by
seventeenth-century jurisprudence.6
The case of Vo v. France7 must surely be convincing evidence that some
protection of the fetus against the negligent or criminal antenatal carer is a
requisite for the twenty-first century “ the step between the ˜no interests™
of the fetus and the paramountcy of the ˜best interests™ of the neonate
spans too great a divide. Mrs Vo™s case emphasises that the barrier to the
recognition of fetal interests lies in the abortion issue. The impregnability
of that barrier is, however, founded on a misconstruction of the motives
behind the call for review. The target is not the repeal of the Abortion Act
which, like it or not, is here to stay. What is needed is a change in the
˜mind-set™ to abortion which would recognise that the fetus has at least
some interests, or even rights, which need to be placed in the balance pan.
Our main concern here is with termination of pregnancy on the grounds
of fetal disability and, while we have considered the position of the fetus
whose interests are unlikely to be served by being born at considerable length
under the rubric of wrongful life, we have, to all intents, ignored that of
the one who might well wish to be born irrespective of physical imperfection “
and the 1967 Act, section 1(1)(d) makes no allowance for such a
possibility. In essence, this is something of a plea that we should approach
the section 1(1)(d) case from a different angle and, rather than asking the

5
See p. 233.
6
See Lord Mustill in Attorney General™s Reference (no. 3 of 1994) [1998] AC 245 quoting
Co. Inst., Part III, ch.7, p. 50.
7
(2004) 79 BMLR 71.
300 The troubled pregnancy

pregnant woman: ˜do you want to abort this pregnancy?™, we should, first,
look to the option: ˜would you consider offering your unwanted baby for
adoption when it is born?™8 The choice would always be the woman™s, but
attitudes might well be changed for the better. In fact, it is surprising how
little adoption features in the cases that have been studied here “ possibly
because the outcome of an offer for adoption is so uncertain, especially at
the fetal stage of development.9 Where, it is taken up, it is mentioned as an
alternative to abortion but on an equal footing; in fact, of course, abortion
and adoption are widely distinct concepts “ the former actively destroys
life, the latter preserves it. They should not be regarded as being on a par
either as to morality or as a practical refuge.
All of which relates, in the end, to one of the main problems within the
1967 Act “ that of the failure of demarcation as to ˜substantial risk™ of
˜serious handicap™ in section 1(1)(d).10 There is no ˜bright ring™ to guide
us “ nor is there likely to be given the current wording of the Act. This is,
surely, a matter which Parliament ought to, and could, look at urgently
without reopening controversy. Having said which, it is, perhaps para-
doxical that I should go on to isolate the wrongful birth action as being
one aspect of litigation in this field that stands out as having been solved
logically in the courts of the United Kingdom. The essential distinguish-
ing feature of such an action is that the parents concerned wanted a child;
they did not, however, want a disabled child which they now have as a
result of the antenatal carers™ negligence. It, therefore, seems to be as fair
as is possible11 to both sides in such a situation that the parents should
accept the child but that the carers should recompense them fully for the
difference in the costs of rearing a disabled rather than a healthy child “
and there need be no difficulty in assessing such costs.12 Almost


8
This is not an entirely original script but was first suggested, albeit in the context of
terminations under s.1(1)(a), by Sheila A. M. McLean, ˜Abortion Law: Is Consensual
Reform Possible?™ (1990) 17 Journal of Law and Society 106“23.
9
And even in the case of the neonate. See, for example Re B (a minor)(wardship: medical
treatment) [1981] 1 WLR 1421, [1982] 3 FLR 117, discussed at p. 256, n. 60.
10
An interesting article has been published while this book was being processed which
considers the problem of mental handicap and the treatment of the disabled neonate
which I have addressed in Chapter 7. As part of the solution, it introduces the concept of
˜reduced benefits of life™ in assessing such infants: D. Wilkinson, ˜Is it in the Best Interests
of an Intellectually Disabled Infant to Die?™ (2006) 32 Journal of Medical Ethics 454.
11
Although it is almost impossible to accommodate the emotional cost within the envelope
of ˜fairness™ “ so many variables are involved.
12
It has been reported recently that another European country, Austria, has, for the first
time, allowed such an action. The Supreme Court does appear from the brief report
available, however, to have muddied the waters by ordering full support of a Down™s
syndrome child: Bojan Pancevski,˜Doctor Must Pay Child Support after Inadequate
Warning of Disability™ (2006) 333 British Medical Journal 168.
Conclusion 301

perversely, however, the current UK jurisprudence on wrongful birth was
founded inaccurately on analyses of McFarlane,13 the case of wrongful
pregnancy which forms the hub of this book and which leads to what I see
as the second main reason behind the courts™ anxieties “ that is, the
conflict between human emotion and legal principle that is such a feature
of cases involving the uncovenanted birth of a healthy child.
We have seen the development of this struggle on an international scale
throughout this book “ demonstrated by, on the one hand, a reluctance to
see the birth of a child as anything other than something to be welcomed
and, on the other, taking the black-letter view that wrongful pregnancy, in
particular, is as much a matter of negligence as of reproduction and that
the normal rules of medical negligence must apply. And although it may
seem trite to remind the reader, this conflict is epitomised by the unan-
imous support for the former view by the House of Lords in the Scottish
case of McFarlane and the majority opinion in favour of the latter in the
Australian case of Cattanach, both of which have been extensively
reviewed in Chapter 4.

Legal or moral principle?
This is no place to recapitulate the arguments employed on each side
which have already been reviewed in detail. In summary, however, it
seems to me that the whole discourse is based on a fundamental mis-
conception. I have tried to emphasise throughout this book that the basis
of the uncovenanted pregnancy action implies no disrespect of the fetus
that has been unwittingly conceived or for the child that it has become. It
is the consequences of a new addition to the family that are in issue and
these may go deeper than has, perhaps, been portrayed up till now.
Looking back over the previous chapters, I feel I may have concentrated
too much on the pure financial costs of a new baby. But there is more at
stake than this. It has to be remembered that the uncovenanted child is
not simply unplanned “ rather, positive plans have been made and positive
steps have been taken not to have an addition to the family. In the event,
the whole modus vivendi of the family as an item has been distorted. What
is being asked in an action for wrongful pregnancy, and to much the same
effect in that for wrongful birth, is that the family ambience should be
restored so far as is possible to what was planned before the plans were
disrupted by the negligence of another. To what extent, if any, then,
should the ordinary rules of tort be modified in order to accommodate a


13
n. 3 above.
302 The troubled pregnancy

very particular aspect of negligence? The answer is, perhaps, not so
simple as appeared when the first of the articles on which this book is
founded was written.14
The majority decision in Cattanach was, on a subjective view, a triumph
for anyone who believed that McFarlane was wrong on the grounds that
the decision flew in the face of the established law of negligence. Why,
then, does it take on the mantle of a Pyrrhic victory? The minority in
Cattanach appear to have thrown legal principle to the winds and the
answer to that question can only lie in an intuitive “ and, arguably,
unreasonable “ preference for their idiosyncratic and undoubtedly emo-
tional approach over the attempts in the House of Lords to achieve a
rational reason for an irrational decision. In short, what Cattanach does is
to emphasise that, as we all know, there are two sides to every question “
and to the question of recompense for wrongful pregnancy in particular.
But, it has to be said, the train stops there; on pure legal principle, Mr and
Mrs McFarlane deserved more than they got and one must save some
sympathy for those who have to follow in their footsteps. At least in my
view, the House of Lords recognised that in Rees,15 even if only sub silentio.
Thus, the final question remains “ should matters such as these, which
are so fundamental to societal morality, be decided on the basis of judicial
activism or should they be left to Parliament? Perhaps it would be best to
leave the answer to that question for another day.


14
J. K. Mason, ˜Unwanted Pregnancy: A Case of Retroversion?™ (2000) 4 Edinburgh Law
Review 191“206.
15
See p. 174 above.
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Index




abortion, 1, 14“52, 81, 196, 204, 207, 211, Baker J, Scott, 268
216, 238, 239, 261, 299 Balcombe LJ, 19, 50, 263“4, 269
ban, 30 benefits rule, 107
criminalisation, 22 Bingham, Lord, 77, 118, 167, 168, 169,
gradualist approach, 16“17 172, 173, 176“9, 180, 181,
late, 54“66 182, 185, 298
live birth, 54 birth
Muslim views, 78 live, definition, 20, see also viability
registered medical practitioners, 25, 27 unconvenanted, definition, 4
risk, to the mother, 28, 31 ˜birth actions™, in United States, 80
of fetal disability, 57 Black, Sir Douglas, 255
Roman Catholic views, 17“52 Blair, J., 118
serious handicap, 58 Bolam test, 9, 10“12, 13, 70, 75, 101,
three trimester rule, 19 283, 285, 294
under-age, 32“5 Brazier, Professor Margaret,
abortion laws, 25“32 27, 277
attack on, 26“7 Bridge, Lord, 69
˜bad faith™, 29 British Medical Association, 292
Channel Islands, 29 Brooke LJ, 21, 93, 105, 135, 147,
conscience clause, 29 148“9, 154, 155“6, 182,
in practice, 27“30 277, 279
Northern Ireland, 28 Brown J, Simon, 41
reform, 30“2 Brown P, Sir Stephen, 270, 281
abortionist, 15 Browne-Wilkinson, Lord, 11
abortus, living, 54 Butler-Sloss, Dame Elizabeth, 34, 83,
Ackner LJ, 206, 209, 212 111, 248, 249, 250, 265, 278,
adoption, 54, 108, 116, 117, 129, 140, 300 279, 282, 283
amniocentesis, 65, 77“8 Buxton LJ, 143, 144“5
anencephaly, 63, 260
ante-natal care California
principles of 66“79 action against parents, 195
counselling, 67“71 birth torts recognised, 5, 199
investigations, 63“6 Callinan, J, 134
Arthur, Dr., 254, 258, 295 Cameron, Lord, 124, 125, 137
Astill J, 184 Canada
Auld LJ, 94, 111 fetal/maternal unity, 44
Australia wrongful birth, 82
information disclosure, 69 wrongful life, 224“31
jurisprudence, 4, 167, 213 wrongful pregnancy, 107“8
wrongful birth, 82“3 Capron, Alexander, 6, 189
wrongful life, 213“24 Cazalet J, 271“2, 279
wrongful pregnancy, 108, 125“41, 297 Chadwick LJ, 184“5
Austria, wrongful life, 300 child, ˜conventional™, 123“4

312
Index 313

child, uncovenanted Connell J, 265
compensation for, 2“3, 84, 110, 143, consent, informed, 67, 76 see also
145, 149, 152“63, 298 information based negligence
in Australia, 128, 139, 140, 141 contraception, 1“2, 35“8
in Canada, 107 compensation, following failure, 2
in the United States, 107 displanting methods, 37“8
meaning, 4, 105 interceptive methods, 35“7
disabled child, 6, 7, 53, 126, 136“7, 145, contragestation, 22, 35
150“2, 188“90 et seq, 300 Cory J, 75
compensation for birth of, 3, 80, Council of Europe
84“99, 125, 298 protection of of fetus, 48
in the commonwealth, 82 Cox, Dr, 295
best interests, test of treatment, Crennan J, 220, 223, 224
246“50, 259“60, 262, 265, 268, Cullen LJ-C, Lord, 112
269, 274, 276“9, 280“1, 282,
287“9, 292, 293 damnum, 86, 113, 180“1
emotional distress, 81, 85, 92, 153 Deane J, 130
management delict, 87
medical futility, 244, 246, 251 diminished life, 237“9, 240
professional guidelines, 290“3 Diplock, Lord, 68
withdrawal of life support, 244, discrimination on the grounds of disability,
255, 284“6 56, 235
withholding and withdrawal of Dixon, Clare, 183
treatment, 245, 268, 284“6 doctors,
withholding nutrition, 254, 255 abortion, 25, 27, 28, 29“30, 31, 33, 53
substituted judgement, 248, 259, 293 conscience, 252, 260, 264, 281
child destruction, 20, 22 and abortion, 8“9
child murder, 242 and clinical judgment, 261
chorionic villus sampling, 65“6 see also, duty of care, information based
Clark J, 146“7, 148 negligence, medical negligence
Clarke JA, 199 Donaldson, Lord, 209, 245, 247, 250,
Clyde, Lord, 115, 116, 118, 119, 120, 124, 260, 262, 263, 266, 274, 277,
138, 145, 150, 151, 170 282, 283
Coleridge LCJ, Lord, 215 Down™s syndrome, 61“2, 63“5
communication-based negligence see cases involving, 72“3, 77, 80, 83, 192,
information based negligence 194, 203, 233, 253, 254, 300
compensation, 236 Dunn LJ, 67, 247, 253, 256, 258, 269
disabled child, 3, 80, 81, 82, 84“99, 150“63 duty of care, 9, 68“71, 103, 120, 133, 197,
and age of majority, 201, 240 209, 219, 220, 229“31
healthy child, 96“7, 105“49 to the abortus, 55
in the United States, 107 to the fetus, 79, 206“9, 218, 236
no-recovery school, 107, 132“4, to the mother, 54, 68“71, 79, 155,
139“40, 145, 163 207, 231
compensatory principle, 214“15 to the neonate, 229“31
Conception
human inviolability begins at, believers Eastham J, 101
of, 37 Elias CJ, 41
congenital disability, causes embryo in vitro, 17, 22
chromosomal, 61 Epstein J, 191, 226, 227
translocation defect, 61, 65, 73, 77, 88 Ethics
combined effects, 63 principlism, 12
environmental, 62 European Court of Human Rights, 31,
drugs, 62 48, 292
haemolytic disease, 62 euthanasia, neonatal, 242, 292“6
genetic, 196 Ewbank J, 253, 256
314 Index

Farquharson J, 254“5, 256, 257 Huntington™s disease, 60
fetal maternal relationship, 43“4 Hutchison J, 73, 75
fetal rights, 17 Hutton, Lord, 169, 171“2, 174, 175, 182
feticide, 47, 48, 49, 50, 57, 230 hydrocephalus, 266
fetus, 16“23
beginning of life, 45, 48 Iacobucci J, 75
French law, 48 implantation, 35
choice of abortion, 238 moral significance, 17
duty of care to, 79, 207“10, 218, 221, starting point of meaningful human
225“6, 236 life, 17
involuntary death of, 41“9 infanticide, 242
transferred malice, 43“4 information based negligence, 68“71, 196,
moral status, 17, 18, 30, 40, 43, 299“301 226 see also Bolam test
protection in Europe, 47 causation, 71“7
unintentional fetal homicide, 47, 48 duty of care, 68, 69
viability, 19“21, 22, 23, 40, 45, understanding, 78
46, 50 intolerability of continued life, 247, 269,
Fortin, Jane, 212 276“9, 296
France, wrongful life actions, 231, 232“4 inuria, 86, 113, 180
Fragile-X syndrome, 61 Ipp, JA, 214, 216, 224
Fraser, Lord, 34 Islam, and abortion, 35
IUD, 35, 37, 38
Gans J, 227
Garett J, 106 Jehovah™s Witnesses, 251
genetic disease, 59“61 Jennings J, 226, 227
history, 57 Jotkowitz, 295, 296
late-onset, 60 Judge LJ, 186“7
multifactoral type, 60 Jupp J, 89, 108“10, 117, 136
Gibson LJ, 104
Gill, Lord, 112 Kennedy J, 105, 142“3
˜Gillick-competent™ child, 33“4 Kennedy, LJ, 184, 185
Gillon, 246 Kerr LJ, 94, 102, 110
Gleeson CJ, 128“9 Kirby, 7, 43, 83, 86, 123, 135“7, 140“1,
Goff, Lord, 285 162, 220“2, 223
Griffiths LJ, 206, 209, 222, 238 Kleinfelter™s syndrome, 58, 61
Groningen Protocol, 293“5
Gudron J, 70 Lakin CJ, 72
Gummow, J, 132“4, 140, 162 Lambert, JA, 74
Laws LJ, 94, 144
Hale LJ, 98, 137, 138, 139, 147, 149, Lawson J, 206, 237
156“61, 162, 164“5, 166, 170, Lax J, 134, 219, 224
175, 179, 241, 264 Leggatt LJ, 263
Hayne J, 129“30 Levenson J, 93, 94
Henriques J, 80, 92, 95, 124, 162 Longmore, J, 151, 156
Heydon, 130“2 Lorber, John, 244
Hedley J, 252, 260“1, 273“5, 278, Lowry, Lord, 285
280“1, 282
Hoffmann LJ, 273, 274 MacFadyen, Lord, 88
Hollinrake JA, 74 Marnoch, Lord, 89
Holman J, 277, 278, 279, 284, 285“9 Mason P, 214, 216“18, 219, 220
Holmes J, 127, 156 maternal serum tests, 64
Hope, Lord, 76, 116, 117, 120, 122, 138, McCluskey, Lord, 31, 113, 123, 158
151, 155, 171, 172, 174“5, 178, McHugh J, 132“4, 140
180, 181, 182 McKenzie, J, 247
Hoyana, Laura, 114, 119, 124, 165 McLachlin J, 75
Index 315

Maclean, Alasdair, 71 Pain J, Peter, 2, 102, 105, 109
McLean, Professor Sheila, 18, 26 Park J, 115, 142
medical negligence, 9“13 et seq, 83, 218, partial birth, 23
232, 235 see also information patients
based negligence autonomy, 24, 71, 79, 86, 140
and abortion, 38“40, 229 breach of, 77, 86, 100, 157, 179, 241
causation, 12“13, 74, 76“77, 148, 197, 225 and choice, 12, 179
communication, 12, 68, 104 decision, 12
duty of care, 9, 68“71, 103, 124“5, 196, 236 ˜reasonable™, 69, 73“5, 77
immunity, 132“3, 136, 221, 285 Pearson J, 239
general standard of care, 10“12 personhood, 243
legal, 10 Pollock J, 221
professional, 10 pre-conception tort, 196“9, 224
proximity, 147“9, 183 causation, 197
Millett, Lord, 116, 117, 120“1, 122, 138, pregnancy
144, 151“2, 168, 169, 170, 172, uncovenanted, 4, 84, 105, 160
174, 178, 179 unwanted, 1, 2“3, 4, 132
minors Priaulx, Nicolette, 177, 179, 180, 309
and abortion, 32 Priestly JA, 116
consent to treatment, 32 privacy, women™s right to, 18, 20
medical confidentiality, 32 Prosser, Lord, 89
protection of, 262 Purchas LJ, 102, 111
miscarriage, 15, 36, 65, 78
Morison, Lord, 89, 98“9 Queensland, 127, 141, 297
Morland J, 78
morning after pill, 35 reasonable woman, 73“5
Morris, Anne, 233, 234, 239 risk
mothers abortion laws, 25“32
disabled, 163“6 and tort law, 154
status of, 24 Roman Catholicism, 17“52, 246
Munby J, 36, 37 Royal College of Paediatrics and Child
muscular dystrophy, 87 Health, 290“1
Mustill, Lord, 43, 245, 299 Rubella (German measles), 62, 213“16
cases, 91“3, 202, 205“10, 213“16, 232“4
negligent injury, 189 Ryan J, 197
neonaticide, 57, 242, 295
Netherlands, 236, 293“5 Saintier, Severine, 234, 235, 239
neural tube defects, 62, 64“65, 260 sanctity of life, 140, 204, 242“4, 245, 263,
cases, 54, 96“7 289, 292
New South Wales, 86, 117, 125, 127, 141, Scarman, Lord, 29, 34, 101
213, 216, 222, 297 Schneiderman, L.J., 246
New Zealand, 118, 213, 289 Scotland, 22, 84, 113, 204, 212, 235
Newman J, 80, 90“1, 95, 115, 120, 124 Scott, Lord, 169, 174, 178, 180, 182
Nicholl J, 152 Sharpe J, 227
Nicholls Lord, 73, 169, 174, 176, 177, 178 Silber J, 34
Nimmo Smith, Lord, 87“8, 89 Simon J, 78
non-treatment decisions, 251, 255 see also Singer, S., 119, 121, 180
child disabled, withdrawal and Skipp J, 228, 229“31
withholding treatement Slade LJ, 102, 110
Northern Ireland, 28 Slynn, Lord, 113, 118, 119“20, 122, 123,
Nourse LJ, 102 138, 150, 151, 155, 181
Smith LJ, Stuart, 72, 101
O™Connor, Justice, 20 social security
Ognall J, 111 France, 233“4
Oliver, Lord, 125 Sopinka J, 75
316 Index

South Australia, 141 United States
South Dakota ˜partial birth™ terminations, 23
abortion in, 30, 37 privacy, 35
Spigelman CJ, 44, 215“16, 223 substituted judgement, 248
spina bifida, 64, 160, 244, 294 wrongful birth, 80“2
spinal muscular atrophy, cases, 263, 284 wrongful pregnancy, 106“7
standard of care recovery following, 107, 137
professional, 69“70, 77
reasonable patient, 69, 73“5, 77 varicella (chicken-pox), 62
in the USA, 69 vasectomy, 100“1, 102
subjective standard, 69 cases, 103, 106, 112“13, 125
Stephenson LJ, 205, 206“9, 210, 212, ventilation, artificial, 268, 270, 273, 281,
218“19, 237 282“3, 284, 285, 288
sterilisation vitalism (absolutism), 243, 247,
already pregnant, 104, 143 268“9, 273
breach of duty, 104“5
duty of care to partner, 103“4 Waite J, 262, 264
natural failure, 100, see also tubal Walker LJ, Robert, 137, 158, 164, 166,
occlusion and vasectomy 170, 171
negligent, 100“5 Waller LJ, 110, 154, 161, 162, 163, 166,
non-voluntary, 100 171, 174, 182
voluntary, 100 Ward J, 267
reversibility, 101“2 Warnock Committee, 17
Steyn, Lord, 67, 76, 115, 116, 117, 118, Weir, Tony, 141, 231
121, 122, 125, 138, 145, 150, 151, Williams, Glanville, 56
167, 168, 169, 170, 171, 173, 174, women™s rights, 50
178, 179, 182 medicalisation of, 29
Strasser, Mark, 5 Wood JA, 74
Stretton, Dean, 130, 216 Woods J, 198, 200
Substituted judgement test, see disabled Woolf, Lord, 70, 71
child Wright J, 37
syphilis, cases, 198 wrongful birth, 4, 6“7, 122, 172, 216
Australia, 69, 82“3
Tasker, Robert C., 244 Canada, 82
Tay-Sachs disease causation, 71
cases, 82, 194 compensation, 84“97
Taylor LJ, 269, 270, 274, 276 Europe, 233, 234
Templeman LJ, 188, 209, 228, 247, 257“8, lack of conceptual difference
269, 276 between wrongful, birth, life,
thalidomide, 210 pregnancy, 96, 133, 217“18,
Thomas J, Swinton, 91 219, 239
Thorpe LJ, 246, 248, 250, 279, 282, 287 negligence, headings, 85
Toulson J, 86, 91, 96“7, 98, 115, normal neonate, 86
124, 125 UK, 75, 83“97
tubal ligation and occlusion, 101 USA, 107, 199
cases, 103, 125, 126“37, 153, 164 wrongful conception, 6, 115, 145
Twaddle JA, 225 wrongful life, 5, 7“8, 121, 189, see also
preconception tort
ultrasonography, 64 abortion, effect on, 211
United Kingdom Australasia, 213“24
attitudes to abortion, 14, 18 Canada, 224“31
˜Bolam™ test, 70 causation, 207, 217, 221, 225, 227“8,
child murder, 242 231, 235, 236“7, 238
wrongful life, 204“13, 224 compensation, 192“5, 201“2, 235, 236
wrongful pregnancy, 108“25 beyond age of majority, 201, 240
Index 317

lack of conceptual difference between disabled mother, 163“6
wrongful, birth, life, pregnancy, duty of care, 113, 172
210, 217“18, 219, 298 history of
public policy, 209 in the UK, 108“25
refusal of, 216 in the US, 106“7
United Kingdom, 199, 204“13 injury to the mother, 113
United States, 191“204 invasion of autonomy, 156, 179“80,
acceptance, 194“6 180“1, 185
wrongful pregnancy, 4, 6, 172, 301 lack of conceptual difference between
and abortion, 109, 116, 117“19, wrongful birth, life, pregnancy, 96,
142“143, 157, 300 217“18, 219
and adoption, 116, 117“19, 127, 300 legal policy, 135, 179
Australia, 125“41 liability, 105, 119, 138, 150, 159“61,
benefits rule, 107 172, 183
rejection, 123, 137 mother™s claim, 103, 105, 112, 114, 143,
Canada, 106, 107“8 177
costs of maintaining a child, 139, 164, New Zealand case, 116, 118
175, 183 novus actus interveniens, 110, 115“17, 160
disabled child, 145, 147, 150“2, 158 public policy, 109, 110, 117“19, 129,
healthy child, 2, 114, 118 130, 134, 136, 140
˜conventional award™, 177, 183
˜deemed equilibrium™, 158, 165 Zuber J, 82

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