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no difficulty in awarding special damages in cases of wrongful birth. The
problem was to decide whether this still held following McFarlane and
Henriques J detailed sixteen reasons why it did – including the funda-
mental observation that McFarlane was not concerned with a disabled
child and had, in effect, dissociated itself from such considerations. He
considered that the loss to the parents was pure economic loss but that, in
view of the clear breach of duty to the mother and of the child’s disabil-
ities, it was, nevertheless, fair, just and reasonable to make an award both
in Caparo173 and distributive terms of justice. Having, as was done in
Rand, established that the existence of the Abortion Act 1967 was suffi-
cient to impose liability for the consequences of an omission to warn of
the likelihood of fetal defect, the judge also followed Newman J in
adopting a strictly practical attitude to the award of damages following
the birth of a disabled child:
I do not consider it to be either invidious or morally offensive or impractical to
draw a distinction between Daniel Hardman and a healthy child for the purposes
of determining the present question. The task is merely to quantify the additional
cost to the parents caused by the disabilities.174
Henriques J saw no difficulty in defining disability and he did not antici-
pate a growth of case law comparing disabilities. On both scores, he may or
may not be right. The court did, however, depart from Rand in finding
that any award made in respect of the child’s special needs should be related
to the degree of disability rather than to the parents’ available resources.
The latter scenario was considered ‘deeply unattractive’ – and few would
regard this as a suitable area in which to introduce a means test.175


172
Including Emeh v. Kensington and Chelsea and Westminster AHA [1985] QB 1012; Salih,
n. 126 above; Fish v. Wilcox, n. 157 above; Nunnerley v Warrington Health Authority
[2000] Lloyd’s Rep Med 170; Taylor v. Shropshire Health Authority [2000] Lloyd’s Rep
Med 96; Rand, n. 155 above; Anderson, n. 139 above; McLelland, n. 145 above.
173
Caparo Industries plc v. Dickman [1990] 2 AC 605.
174
n. 159 above, at BMLR 72, Lloyd’s Rep Med 506.
175
Henriques J specifically discarded a notion of inconsistency in awarding damages to the
parents when an action on behalf of the child was not available. The interplay of the
wrongful birth and the wrongful life action is discussed in Chapter 6.
96 The troubled pregnancy

Having considered cases involving chromosome disorder and viral
infection it is convenient to complete the picture and look at the last of
the three main exemplar cases, Lee v. Taunton and Somerset NHS Trust,176
in which the negligence lay in a failure to diagnose a neural tube defect in
the fetus. Mrs Lee would have had a termination had she been appraised
of the true situation.
The case was essentially concerned with the availability and the quan-
tum of damages and, as a consequence, Lee is notable for its extensive
review of the arguments deployed in McFarlane – to which we will revert in
the next chapter. Stripped to the barest detail, Mrs Lee’s case relied on the
relatively simple proposition that, fundamentally, the claim for recovery in
McFarlane failed because of the impossibility and offensiveness of attempt-
ing to balance the benefits of a healthy child against the burdens of a healthy
child. The result was that McFarlane was irrelevant once the additional
economic consequences of disability took on the role of the primary issue.
Counsel for the defendants, by contrast, produced an impressive list of
reasons why there was no distinction to be drawn between what were,
essentially, cases of wrongful pregnancy and wrongful birth. These inclu-
ded the submissions that it was unreasonable to impose responsibility on
the Taunton and Somerset Trust for the massive costs of caring for a
disabled child when the Tayside Board was relieved of a far lesser respons-
ibility for maintaining one that was healthy; that it was invidious to weigh
in the balance the relative benefits and burdens of any child; and that it
was neither just nor sensible to try to distinguish between a healthy and a
disabled child when disability ‘is a matter of infinitely variable degree’.
Toulson J found, it might be thought inevitably, that there was a special
relationship between the plaintiff and the defendants and was unable to
accept the proposition that the doctors concerned should not be held
responsible for the economic losses sustained by the parents. The needs
of a severely disabled child, he thought, would have been uppermost in
everyone’s thoughts when investigating the possibility of fetal abnormal-
ity and, in such circumstances, the Trust could find no refuge in Caparo.
However, he was also closely concerned with the so-called ‘blessings’ of
unwanted parenthood and, as a result, considered that McFarlane pre-
sented no obstacle to the claim in Lee. The thrust of the judgment lies in
the words:
I do not believe that it would be right for the law to deem the birth of a disabled
child to be a blessing in all circumstances and regardless of the extent of the child’s
disabilities.177


176 177
[2001] 1 FLR 419, [2001] Fam Law 103. ibid., at FLR 430.
Antenatal care and the action for wrongful birth 97

and, importantly, he could not see that the court was put in the invidious
position of balancing the issues in the instant case.
In summary, Toulson J found that Mrs Lee should be entitled to
substantial damages and that the law in such cases was unaffected by
the decision in McFarlane. The question of a claim in respect of basic
maintenance was not addressed in Lee but one suspects that the judge
would have been sympathetic to full recovery. Finally, Lee followed
Hardman rather than Rand in holding that the extent of the damages
payable was governed by the infant’s needs rather than by the parents’
resources.


Conclusions
What, then, is to be concluded from these three linked cases? It must be,
surely, that the viability of the wrongful birth action is confirmed and, in
fact, reinforced. First and foremost, we must bear in mind the signifi-
cance of the Abortion Act 1967. While the Act has, at most, a secondary
role in the wrongful pregnancy case, it represents the crux of the action for
wrongful birth – indeed, its very existence not only provides evidence of a
woman’s statutory right to avoid what is, in many cases, ‘an unhappy and
burdensome situation’, but also indicates that Parliament must have
considered it to be in the public good that she should be able to do so in
such circumstances. The negligent antenatal adviser has, undeniably,
deprived a woman of that right.
More specifically, it is possible to view the wrongful birth action from
the strictly practical and economic aspects of parenting. There is nothing
degrading or discriminatory in awarding damages. The parents wanted a
child and were, therefore, accepting the anticipated costs of rearing that
child. What they did not want were the extra costs and restrictions
imposed by the needs of a disabled child. It follows that justice is done
in awarding damages for those extra costs while denying them for the
basic costs of maintenance and the courts are faced, not with an ‘invid-
ious’ task of assessing the ‘value’ of a child, but with the everyday exercise
of assessing the costs of disability – that is, the ‘expense’ of a disabled
beyond that of a normal child. In doing so, there is no reflection on the
‘quality’ of the child – the damages are given so that the parents are
provided with the materials and the opportunity to deliver the love and
care which will restore the conditions, so far as is possible, of a normal
family which have been compromised by negligent antenatal care. For
this reason, it seems to me to be neither disproportionate in terms of the
financing of the NHS, nor unfair in Caparo terms, to lay the consequences
of failure on the responsible health carers. They had a specific job to do
98 The troubled pregnancy

with readily foreseeable results in the event of incompetence, including
those of economic loss. The conditions are close to those of a contractual
relationship, and there can be no doubt as to the existence of a special
relationship between patient and investigator; there is no need, in my
view, to raise what is no more than the red herring of the infliction of the
type of personal injury that is inherent in a case of wrongful pregnancy.
The two actions are quite distinct and cannot be conflated – to quote
Toulson J in a different context,178 ‘you can offset apples against apples,
and pears against pears, but not apples against pears’.
One practical problem remains: that is, the time over which the dam-
ages are to be paid. It is arguable that the parents’ legal duty to maintain a
child normally ceases at the age of 18179 and that, thereafter, such aid as
they give is voluntary and beyond the responsibility of those who wrongly
caused the child’s existence. On the other hand, the disability will not go
away at a designated moment in time and it is foreseeable that parental
care will be needed – and will be morally, even if not legally, demanded –
until the child’s death. Moreover, the Children Act 1989 allows for
unspecified ‘special circumstances’ that justify the provision of mainten-
ance beyond the age of 18; do these include circumstances such as arise
in wrongful birth? The problem is not new, nor is it confined to the
United Kingdom jurisdiction, and it was specifically addressed quite
recently in Nunnerley v. Warrington Health Authority180 – this being a
standard wrongful birth action, based on a failure to warn of the possible
occurrence of genetically controlled tuberous sclerosis, in which the
woman concerned claimed only in respect of economic loss.181
Morison J disposed of what, on the face of things, could be a very
difficult question with relative ease. The normal principles of tort law
apply – the claimants are entitled to be put into the position they would
have been in but for the wrong done them:
And I can think of no principle which could apply so as to entitle them to
compensation for the period up to 18 but deprive them of it for the period after
he was 18. In each case the parents have suffered a loss they would not have
incurred but for the tort.182



178
In Lee, n. 176 above at FLR 429. 179 Children Act 1989.
180
[2000] Lloyd’s Rep Med 170.
181
The problems of ‘personal injury’ did not, therefore arise.
182
n. 180 above, at 173. But not everyone will be so certain. See, for example, Hale LJ who
said only: ‘There is a great deal in family law to indicate that liabilities . . . may indeed
endure long beyond the age of 18’ – Gaynor v. Warrington Health Authority (2000)
unreported, CA, 9 March. The actual case, however, turned on previously agreed
documents.
Antenatal care and the action for wrongful birth 99

Nonetheless, there are other arguments which Morison J, admittedly did
not deal with – such as the intervention of the local authority and the
contribution of the National Health Service.183 Thus, it seems that what
Nunnerley does is to admit the possibility of damages being available ‘until
the earliest of the mother’s or the child’s death’; each case will, however,
depend on its own facts.
The comment as to the mother’s or the child’s death depends, of
course, on the action being brought by the mother; were the action to
be brought by the child – and, therefore, represent a wrongful life action –
the mother’s death would be irrelevant. Morison J noted, however, that
the child had no claim in law, since a person cannot bring an action in law
alleging that he should not have been born.184 We return to the reasons
for this, and its significance, in Chapter 6.


183
Quoting Hunt v. Severs [1994] 2 AC 350, [1994] 2 WLR 602.
184
McKay v. Essex Area Health Authority [1982] QB 1166, [1982] 2 All ER 771.
4 Unsuccessful sterilisation




Introduction
A man or a woman who wishes to forgo parenthood may well opt for
voluntary sterilisation. A number of prophylactic sterilisations are, how-
ever, performed in the case of those for whom pregnancy would be
disastrous but who are, for reasons of mental incapacity, at the same
time unable to consent to the operation. Such patients may be sterilised
in their best interests – currently described as non-voluntary sterilisation –
but to do so is considered such an affront to a woman’s autonomy that it
may only be done in the United Kingdom by way of a High Court
declaration of lawfulness.1 Such cases are of profound importance in
family law but they are beyond the scope of this chapter which is con-
cerned with the failure of sterilisation services rather than their provision.


Negligent sterilisation
Sterilisation in the context of family planning can, of course, be effected
by surgery performed on either the male or the female within the partner-
ship. Sterilisation of the male is generally achieved by way of division of
the vas deferens on each side. Negligence in the actual operation is very
uncommon but there are natural pitfalls. Amongst these are the residual
presence of sperm in the distal genital tract – and hence the need for at
least two sperm-free ejaculates before unprotected intercourse can be
recommended2 – and recanalisation of the vas, which may occur at
any time after the operation due to the formation of granulomas or


1
Practice Note (Official Solicitor: Declaratory Proceedings: Medical and Welfare Provisions for
Adults who Lack Capacity) [2001] 2 FLR 158, (2002) 65 BMLR 72.
2
Very occasionally, pregnancy can result even though the man is producing persistently
negative specimens: Stobie v. Central Birmingham Health Authority (1994) 22 BMLR 135.
The genuineness of the case was, in fact, proved by DNA testing. See J. C. Smith,
D. Cranston, T. O’Brien et al. ‘Fatherhood without Apparent Spermatozoa after
Vasectomy’ (1994) 344 Lancet 30.

100
Unsuccessful sterilisation 101

inflammation tissue.3 This is said to occur in some 1:2500 cases or fewer
but, nevertheless, it accounts for a major proportion of the cases of wrong-
ful pregnancy that come to court. The alternative procedure in the female
is, generally, obstruction of the Fallopian tubes by either clipping or
sectioning. The failure rate is said to be in the region of 1:600 but this is
a relatively artificial figure as different estimates will be given depending to
a large extent on how the procedure is carried out. It has to be said that,
because of these variations, technical failure is rather more common in
tubal occlusion than in the case of vasectomy. The argument in the event of
litigation of such cases will almost certainly rest on whether a clip or ring
was incorrectly placed or has slipped as a result of the vagaries of nature. As
a consequence, much expert evidence will be involved and the Bolam test –
see Chapter 1 – will be enlisted frequently. In just such a case, Stuart Smith
LJ described the legal limitation of the test succinctly in saying:
[The Bolam principle] has no application when what the judge has to decide is, on
balance, which of the explanations [of failure] is to be preferred. This is a question
of fact which the judge has to decide on the ordinary basis of a balance of
probability. It is not a question of saying whether there was a respectable body
of opinion here which says that this can happen by chance without any negligence,
it is a question for the judge to weigh up the evidence on both sides and he is . . .
entitled, in a situation like this, to prefer the evidence of one expert witness to that
of another.4
The problem of ‘voluntary reversability’ also arises because a large propor-
tion of persons who elect for sterilisation are uncertain as to the future –
and this applies particularly to women. Certainly, there are ways of
performing tubal ligation that lend themselves to reversal should the
need arise5 and, indeed, in Re P,6 it was averred that ‘the situation
today is that the operation is not irreversible’.7 These cases admittedly

3
A rather interesting recent Canadian case centred on the difference between the purpose
of sperm tests in the two situations: Bevilacqua v. Altenkirk (2004) 242 DLR (4th) 338.
The circumstances were, however, fairly unique.
4
Fallows v. Randle [1997] 8 Med LR 160. In particular, explaining Lord Scarman in
Maynard v. West Midlands Regional Health Authority [1985] 1 All ER 635, [1984] 1
WLR 634 at 639 – which was a matter of opinion rather than of fact. The reasoning in
the Scottish case of Allan v. Greater Glasgow Health Board 1998 SLT 580, (1993) 17
BMLR 135, OH, should also be noted.
5
In Re M (a minor)(wardship: sterilisation) [1988] 2 FLR 497, [1988] Fam Law 434, a case
of non-voluntary sterilisation, the experts contended that the operation was reversible in
some 75 per cent of cases and preferred to look on it as being contraceptive in nature.
6
Re P (a minor)(wardship: sterilisation) [1989] 1 FLR 182, [1989] Fam Law 102, a very
similar case to Re M, n. 5 above.
7
Although, rather strangely and without further comment, Eastham J went on to say
‘although it is the current ethical practice to tell the patients it is an irreversible operation’,
Re P, n. 6 above, at FLR 189 (my emphasis).
102 The troubled pregnancy

concerned non-voluntary sterilisation in which the doctors were con-
cerned to obtain a declaration of lawfulness. Even so, one would imagine
that, given an unexpected failure of a voluntary operation, the surgeon
would be excused any suggestion of negligence had he or she been
instructed to ensure reversibility.8
The situation as regards vasectomy is rather different. Men are prob-
ably less concerned as to their power to reproduce than are women and the
operation in men is more destructive of tissue. While reversal can be
achieved, the majority of surgeons will describe their efforts as ‘irrever-
sible’. I believe that the word means just what it says – the surgeon is
merely stating that he or she cannot put back the clock if asked to do so.
Yet it is surprising what a degree of medico-legal furore the word has
caused. In the leading case of Thake v. Maurice,9 the consent form relating
to vasectomy read: ‘I understand that the effect of the operation is
irreversible’ – and both Mr and Mrs Thake took this to mean that they
could never have any more children. This was accepted by Peter Pain J at
first instance who said: ‘[I am] driven to the conclusion that the contract
was to make the male plaintiff irreversibly sterile’10 – and, in this, he was
joined by Kerr LJ in the Court of Appeal and, indeed, by the defendant
himself, who acknowledged that the word ‘irreversible’ could, and prob-
ably would, be understood as meaning ‘irreversible by God or man’.
Notwithstanding this, however, both Neill and Nourse LJJ in the same
court considered that a reasonable person would not have left the con-
sulting room thinking that the defendant had given a guarantee of abso-
lute sterility. Similarly, in the very comparable case of Eyre v. Measday,11
which involved a failed sterilisation in a woman, Slade LJ had this to say:
I take the reference to irreversibility as simply meaning that the operative procedure
in question is incapable of being reversed, that what is about to be done cannot be
undone.12 (my emphasis)
Despite this, however, Purchas LJ was happy to accept that ‘misunder-
standing relating to the word ‘‘irreversible’’ ’ had led the plaintiffs ‘per-
fectly genuinely to believe that they were being given this guarantee [of
100 per cent sterility]’.13 Both Thake and Eyre involved ‘budget’ opera-
tions performed privately and were, therefore, argued, additionally,

8
The classic instance lying in the historic Canadian case of Doiron v. Orr (1978) 86 DLR
(3d) 719 in which liability was not imposed following an operation modified at the
patient’s request.
9
[1986] QB 644, QB & CA, [1986] 1 All ER 479, CA. 10 ibid., at QB 658.
11
[1986] 1 All ER 488, CA. This is not a very satisfactory case as it interwove through the
courts with Thake v. Maurice, n. 9 above, and was consistently out of step.
12
ibid., at 494. 13 ibid., at 496.
Unsuccessful sterilisation 103

under contract law. They are, therefore, very unlikely to recur – any later
cases will almost certainly be taken in negligence.14 However, at much the
same time, a rather under-reported tubal occlusion case, involving failure
to warn, occurred in which it was alleged that the words on the consent
form: ‘. . . we understand that this means we can have no more children’
constituted a misrepresentation in that they implied a guarantee of ste-
rility.15 The court held, and did not undertake the seemingly difficult task
of justification, that the words implied no more than an intention that the
couple should have no more children. At least it can be said that this rash
of cases was sufficient to hasten the introduction of a new form of consent
to sterilisation in the NHS which should lay the matter to rest.16

The duty of care
Quite clearly there can be no negligence in the absence of a duty of care.
The question arises as to whether that duty extends to a spouse or partner
when, as in a case of sterilisation, a failure of duty to one or other results in
damage to both – and, so far as I know, this possibility has not been tested
in the British courts. One’s reaction would be to apply the wording of the
Human Fertilisation and Embryology Act 1990 and speak in terms of a
couple being ‘treated together’. And this is not unreasonable in pragmatic
terms; as we will see, the great majority of actions for wrongful pregnancy
are couched in dual terms – the mother’s claim and the parents’ claim,
and parents’ is in the plural irrespective of which has been treated. But
what if the other partner is not on the doctor’s list? Or what of the casual
partner? Does the fact that the standard consent form now has no ‘spousal
confirmatory clause’ – such as was in evidence in Thake – indicate a
change from the concept of a parental entity to one of the individual
patient?
One suspects not – at least in respect of foreseeability of harm – but
this may not be universally so. In a recent US case, a husband whose
vasectomy failed was excluded from compensation on the grounds of his
contributory negligence. His wife then brought an action on her own
behalf which was refused insofar as the doctor performing a vasectomy

14
No contract exists between doctor and patient within the National Health Service: Pfizer
Corporation v. Ministry of Health [1965] AC 512.
15
Worster v. City and Hackney Health Authority (1987) The Times, 2 June. The action was
not taken in negligence because, as the court put it: ‘an application of the Bolam test is
conclusive against her’. It is almost incredible that a responsible body of medical opinion
would not have warned of the risk less than 20 years ago.
16
See Department of Health, A Guide to Consent for Examination or Treatment (HC (90) 22
amended by HSG (9) 32).
104 The troubled pregnancy

has no duty of care to the man’s wife.17 What has certainly been made clear
is that the surgeon who operates owes no duty to potential future partners.
In Goodwill,18 a woman who entered a relationship with a man who had
been advised three years earlier that he was sterile following vasectomy
became pregnant and brought an action against the advisory service. The
striking out of her action was confirmed on appeal on the grounds that there
was none of the necessary proximity between her and the BPAS on which
to found such an action – she was no more than one of many who might
have had sexual intercourse with the man since his operation.

Breach of the duty. Whatever may be the extent of the duty, we can
say that, as in the case of wrongful birth, it exists in dual form – there is a
duty not only to operate with the skill of the competent practitioner but also
to communicate with the patient in such a way that he or she has a
reasonable understanding of the benefits, risks and limitations of the treat-
ment proposed. The importance of the latter in the present context is clear.
The patient without such knowledge cannot make the choice to which he
or she is entitled – this time, whether to accept the risks or to continue with
contraceptive methods. Considering that a major reason for seeking ste-
rilisation will have been to avoid the consequences and inconveniences of
contraception, the choice is stark and this is an area in which, as we have
seen in Thake and Eyre, communication is all important.
Failure in these two duties coincides in the surprisingly common but
distinct situation in which a woman who is already pregnant undergoes a
sterilisation. Here, the doctor fails either to consider the possibility and,
consequently, omits even a pregnancy test,19 or he or she either fails to
inform of the risk20 or negligently performs a prophylactic uterine curet-
tage.21 The scenario is remarkably constant – the woman cannot believe
she is pregnant, diagnosis is delayed and, by the time it is made, the
woman is either unwilling to accept or is advised against termination.


17
Dehn v. Edgecombe 865 A 2d 603 (Md., 2003).
18
Goodwill v. British Pregnancy Advisory Service [1996] 2 All ER 161, [1996] 2 FLR 55, CA.
And note, further, that Gibson LJ described the doctor’s duty as extending to the man,
his patient and possibly to that man’s wife or partner if she receives intended advice from
the doctor (my emphasis).
19
Groom v. Selby (2002) 64 BMLR 47, [2002] Lloyd’s Rep Med 1 is such an instance.
20
Crouchman v. Burke (1997) 40 BMLR 163.
21
In Venner v. North East Essex Area Health Authority (1987) The Times, 21 February, the
gynaecologist accepted the patient’s word that she was not pregnant and performed no
curettage; negligence was excused on the Bolam grounds that others would have followed
the same line. The more likely opposite result occurred in Allen v. Bloomsbury Health
Authority [1993] 1 All ER 651, (1993) 13 BMLR 47, QB – a case of fetal survival
following the curettage; only the quantum of damages was in issue.
Unsuccessful sterilisation 105

Whatever the cause of the pregnancy, the nature of the claim is also
double headed in this unique situation; this was well described by Brooke J
in Allen which has become something of a leading case.22 Following his
analysis of previous decisions, he was able to identify two distinct foresee-
able heads of loss. First, there is a claim for damages for personal injuries
leading up to the birth of the child and, while we could see some doubt in
a similar claim in cases of wrongful birth, the rationale in cases of wrong-
ful pregnancy seems unassailable. The pregnancy is unintended and is
accompanied not only by discomfort but also by considerable pain. So far
as I can ascertain this head of claim, the so-called mother’s claim, has
been denied only once23 – and this acceptance is very nearly on a universal
scale. Second, there is the totally different type of claim for the economic
loss occasioned by the loss of paid employment and by the obligations
imposed by the upkeep and care of an unwanted child.24 The viability of
this second form of claim – the parents’ claim – may be clear, but both the
underlying ratio for and the extent of the liability it creates can be, and
are, disputed. It is, indeed, the latter particularly that has provoked the
massive legal debate which forms the basis for the majority of this chapter.


Liability and wrongful pregnancy
Disability in a newborn child can occur spontaneously, without premon-
ition and in an environment of impeccable antenatal care. It follows that a
pregnancy that occurs following a ‘failed’ sterilisation may result in either
a healthy or an unexpectedly disabled child but, whatever the outcome,
the underlying negligence has been the same – as has the result, the birth
of an uncovenanted child.25 Injury, either in the form of personal injury or
economic loss or both, was foreseeable and, on the face of things, given
that negligence has been demonstrated, the only variable should lie in the
quantum of damages.26 Yet, the question of whether damages should be
available for the birth of a healthy child has plagued the courts ever since

22
ibid.
23
By Peter Pain J in the trial stage of Thake v. Maurice, n. 9 above, who attempted to offset
this against the joy of parenthood. This may well be the common experience in normal
circumstances; nonetheless, the proposition was overturned in the Court of Appeal.
24
[1993] 1 All ER 651 at 658, 13 BMLR 47 at 54. Brooke J’s unqualified use of the word
‘unwanted’ jars slightly and reminds one that a major reason for rejecting the claim lies in
the unfortunate effect it may have on the child as it matures.
25
As already noted in Chapter 1, n. 6 this term was introduced by Kennedy J in Richardson
v. LRC Products Ltd (2001) 59 BMLR 185, [2000] Lloyd’s Rep Med 280 in order to avoid
the pejorative word ‘unwanted’. In Scots law, it implies a happening which was not
contemplated by the parties concerned.
26
See Watkins J in Scuriaga v. Powell (1979) 123 Sol Jo 406.
106 The troubled pregnancy

an action for wrongful pregnancy was first brought. Clearly, there are
factors involved other than those of strict legal principle. These are of a
moral nature and, although others may be adduced and used on occasion,
they can be summarised as follows:
* The birth of a healthy child should not be considered an injury on

grounds of public policy;
* It is wrong that some persons should be compensated for an event that

many other couples have been seeking unsuccessfully;
* It is undesirable that a child should grow up to discover that it was so

unwanted that its parents did not pay for its upkeep.
These considerations were classically combined in the early Canadian
case of Doiron v. Orr27 in which a healthy child was born to a woman
following a modified fallopian occlusion operation. As Garett J trench-
antly put it (at 722):
I find this approach [to obtain compensation for upkeep] to a matter of this kind
which deals with human life, the happiness of the child, the effect upon its
thinking, upon its mind when it realised that there has been a case of this kind,
that it is an unwanted mistake and that its rearing is being paid for by someone
other than its parents, is just simply grotesque.

There are also practical antipathetic arguments, one being that the
costs of rearing a healthy child are so speculative that they cannot be
regarded as a satisfactory basis for compensation. Judicial disagreement
and resistance on both an inter- and an intranational scale is, therefore, to
be expected and is demonstrated most vividly in the United States
whence much of the jurisprudence on the subject has arisen.

The transatlantic experience

The United States. Historically speaking, the first case appears to
have been heard in 1934.28 It is interesting in that it reminds us of how
public attitudes to sexual activity and reproduction have changed over the
decades. For example, it has to be remembered that, at that time, the
question of the legality of voluntary sterilisation was being seriously con-
sidered by the courts;29 moreover, the case – one of failed vasectomy –
was taken as one of fraudulent misrepresentation rather than negligence.
In the event, it set the pattern for refusing recompense for the immea-
surable benefits of producing a healthy child, a pattern that seems to have

27
n. 8 above. 28 Christensen v. Thornby 255 NW 620 (Minn., 1934).
29
And was still being questioned twenty years later in the United Kingdom: Bravery v.
Bravery [1954] 3 All ER 59, [1954] 1 WLR 1169, CA.
Unsuccessful sterilisation 107

remained undisturbed until the case of Custodio v. Bauer30 in which
the normal rules of tort were applied. Occasionally, maintenance costs
have been awarded but have been offset to an extent by the advantages
of having a new and healthy child – this is generally described as the
‘benefits’ rule.31 It remains the case, however, that the majority of US
courts will reject claims for the upkeep of a healthy child born as a result of
negligent sterilisation – and any of the reasons outlined above can and
have been used.32 The situation in the United States is complicated, first,
by the fact that several states prohibit actions for both wrongful preg-
nancy and wrongful birth by way of statute and, second, because many
courts fail to distinguish between the two. Given these limitations, my
assistants and I have, currently, identified some forty-two cases in which
claims for upkeep of an uncovenanted healthy child were refused and
thirteen in which they were accepted – albeit, some with a deduction for
‘offset’ of the benefits of parenthood.33 Such actions being matters of state
rather than federal law, the result, in my view, is that the US jurisprudence
is of minimal value as a model for a parallel in the United Kingdom.

Canada. In fact, much the same problems have been considered in
Canada. We have noted the early opinion in Doiron v. Orr above34 and this
has been generally followed.35 The Canadian courts have, however, been
prepared to consider maintenance damages with ‘offset’; in the Quebec case
of Suite v. Cooke,36 the advantages and disadvantages of a new child were
held to cancel each other out. Elsewhere, the financial reasons for avoiding
parentage have been held to justify financial restitution37 and a most inter-
esting ‘offset’, because it is against mainstream thought, was allowed in
Keats v. Pearce.38 Here, refusal to undergo a termination was accepted, as it

30
251 Cal App 2d 303 (1962). And more recently Zehr v. Haugen 871 P 2d 1006 (Ore., 1994).
31
The case of Sherlock v. Stillwater Clinic 260 NW 2d 169 (Minn., 1977) has been given great
prominence in the UK courts. The whole matter is particularly well set out in Burke v. Rivo
551 NE 2d 1 (Mass., 1990) and, in what is this author’s favourite by reason of the opinions
given, Ochs v. Borelli 445 A 2d 883 (Conn., 1982): ‘There can be no affront to public policy
in the recognition of the costs of [raising a child from birth to maturity]’ at 886.
32
The classic case, perhaps, is Terrell v. Garcia 496 SW 2d 124 (Tx., 1973). See, more
recently, Johnson v. University Hospitals of Cleveland 540 NE 2d 1370 (Ohio, 1989).
33
There is very little point in recording them individually here. The situation in 1991 was
summarised in Girdley v. Coats (1991) Mo. App. Lexis 1065 as: three states allow full
recovery (New Mexico, Wisconsin and, now, Missouri), six adopt the ‘benefit’ rule
(Arizona, California, Connecticut, Maryland, Massachusetts and Minnesota); and the
majority insist on ‘no recovery’ for a healthy child.
34
n. 8 above.
35
For the most recent cases, see Roe v. Dabbs [2004] BCSC 957 and Bevilacqua v. Altenkirk
[2004] BCSC 945.
36
(1995) 58 ACWS (3d) 961. 37 Kealey v. Berezowski (1996) 136 DLR (4th) 708.
38
(1984) 48 Nfd & PEI R 102.
108 The troubled pregnancy

is almost universally, as being a reasonable action; failure to offer the child
for adoption was, however, considered to be something which should be
taken into account when assessing damages. These mixed results, however,
again demonstrate no recognisable pattern and, within the Commonwealth,
it is to Australia and, in particular, to the case of Cattanach v. Melchior, that
we must look for the clearest exposition of the wrongful pregnancy action –
and we will return to that case later in the chapter.

Historic wrongful pregnancy in the United Kingdom
By contrast, the jurisprudence associated with negligent contraceptive
surgery in the United Kingdom followed a relatively easy path, albeit of
up-and-down pattern, up to the turn of the century. Udale v. Bloomsbury
AHA39 is not, chronologically speaking, the first relevant British case but
it provides a solid foundation on which to build an analysis.40 In outlining
the circumstances of the case, Jupp J said:
Fortunately or unfortunately, she gave birth to a normal healthy boy . . . The
phrase ‘fortunately or unfortunately’ encapsulates the most part of the legal
argument which has surrounded the plaintiff’s claim for damages.41
Thus, Jupp J grasped the nettle firmly at a very early stage in the develop-
ment of the law in this area and Udale can be looked upon as the index case.
The circumstances were relatively simple. Mrs Udale underwent a sterilis-
ing operation but, nonetheless, conceived a fifth child. There is no doubt
that she had a difficult pregnancy but she came to terms with the situation
and was delivered of a healthy boy who, as so often almost miraculously
happens in these cases, was received into the family with love and affection.
In due course, she sued the Area Health Authority under what we have
seen to be the relatively standard headings – for the pain and suffering
associated with pregnancy and childbirth, for associated loss of earnings
and for the upkeep of the child until its majority, this last being the claim
that is, for all practical purposes, the subject of this chapter.
In the event, Jupp J rejected all these except the first – on grounds
which we have outlined above and which, singly or together, have formed
the standard bases for argument worldwide.42 These include the

39
[1983] 2 All ER 522, [1983] 1 WLR 1098.
40
I have analysed these cases previously in J. K. Mason,‘Unwanted Pregnancy: A Case of
Retroversion?’ (2000) 4 Edinburgh Law Review 191–206 which provides the basis for this
section.
41
[1983] 2 All ER 522 at 523, [1983] 1 WLR 1098 at 1099.
42
See the later article by Angus Stewart, ‘Damages for the Birth of a Child’ (1995) 40
Journal of the Law Society of Scotland 298–302.
Unsuccessful sterilisation 109

disadvantage to the child who later found that he had been rejected; the
fact that to offset the joys of parenthood against the economic damage
sustained would mean that virtue went unrewarded while ‘unnatural
rejection of womanhood and motherhood would be generously compen-
sated’;43 that doctors would be under pressure to arrange abortions; and,
finally, having directed us to the Gospel of St John,44 that:
It has been the assumption of our culture from time immemorial that a child
coming into the world, even if, as some say, ‘the world is a vale of tears’, is a
blessing and a reason for rejoicing.45

Jupp J’s decision was avowedly based on public policy and depended very
much on the reasoning in the barely relevant ‘wrongful life’ case of
McKay.46 In the instant case, he concluded that: ‘on the grounds of
public policy, the plaintiff’s claims . . . in so far as they are based on
negligence which allowed David Udale to come into this world alive,
should not be allowed’ (at 531). Even so, damages in respect of pain
and suffering and of the necessary extensions to the plaintiffs’ house
were allowed – this being largely because doing so did not imply rejection
of the child.
No matter how much one may agree or disagree with it, it is apparent
that his opinion, like that of many of the courts that have followed this
line, relies as much on moral values as on legal principles. As a result,
Peter Pain J who, in his own words, firmly put sentiment on one side, was
unable to see the logic of the Udale decision in the closely following case of
Thake v. Maurice.47 Coining the now famous phrase:
[E]very baby has a belly to be filled and a body to be clothed.48
he proposed an award of damages not only for the pain and suffering
attending an unexpected pregnancy and birth but also for the child’s
support. However, he conceded that there must be some offset as mea-
sured by the joy of having a healthy child and, to circumvent the injustice
anticipated by Jupp J, he balanced this against the sorrows of pregnancy



43
The contrary use of the same argument in Ochs v. Borelli, n. 31 above, is particularly
apposite: ‘The plaintiffs’ . . .. love for Catherine should not become reason for denying
them financial relief ’ at 886.
44
John 16:21.
45
n. 39 above, at All ER 531, WLR 1109. ‘Blessing’ is a word that has been widely used in
the courts all over the world.
46
McKay v. Essex Area Health Authority [1982] QB 1166, for which see Chapter 6.
47
[1986] QB 644, [1986] 1 All ER 497 – already discussed in part at p. 102.
48
ibid., at QB 666.
110 The troubled pregnancy

and child birth rather than against the economic costs of rearing the child.
This approach was, however, rejected on appeal49 with the result that
damages under both these heads could be awarded without offset.
Meantime, Emeh v. Kensington and Chelsea and Westminster Area Health
Authority50 was progressing through the courts. The issues here were
rather different and arose, primarily, from the fact that the trial judge
regarded the refusal to abort a physically abnormal child as a novus actus
interveniens – a possibility to which we will return below.51 Even so, the
Court of Appeal specifically rejected the concept of there being a public
policy objection to the award of damages for the negligent conception and
birth of a healthy, as opposed to a congenitally disabled, child.52
As Slade LJ put it
In these circumstances [a negligent operation], it seems to me clear that the loss
suffered by the plaintiff as a result of the defendant’s negligence would be any
reasonably foreseeable financial loss directly caused by the unexpected preg-
nancy, and the subsequent birth of her child.
Or:
If a woman wants to be sterilised, I can see no reason why, under public policy, she
should not recover such financial damage as she can prove she has sustained by
the surgeon’s negligent failure to perform the operation properly whether or not
the child is healthy.53

The combined effect of Thake and Emeh was to overturn Udale, and Emeh
was, at this point, regarded as representing the English law in this area.54
But it is only fair to point out that it was, in many respects, a less than
satisfactory case by which to do so. It was, for example, concerned with
the birth of a congenitally disabled child and, while the arguments, as
above, were extrapolated so as to include the birth of a normal child, there
is no certainty that the result would have been the same had the case
started from that premise. Moreover, it was later suggested that the

49
Per Kerr LJ ibid., at 683, [1986] 1 All ER 497 at 509.
50
(1983) The Times, 3 January, QBD; [1985] QB 1012, CA.
51
For an early assessment of the relationship between abortion and wrongful pregnancy,
see Kenneth McK. Norrie, ‘Damages for the Birth of a Child’ 1985 SLT 69–74 and
Andrew Grubb, ‘Damages for ‘‘Wrongful Conception’’’ (1985) 44 Cambridge Law
Journal 30–2.
52
Per Waller LJ, n. 50 above, at 1022.
53
ibid., at 1025. The court also rejected the variation on ‘offset’ that, in the event of the
child being handicapped, the damages awarded should be those for rearing that child less
the costs of bringing up a normal child – a view that was to survive for some 15 years.
54
‘It is the critical decision in the line of authority in England’ per Lord Steyn in McFarlane
v. Tayside Health Board [2000] 2 AC 59 at 79. See also E. J. Russell, ‘Is Parenthood
always an ‘‘Unblemished Blessing’’ in Every Case?’ 1998 SLT 191.
Unsuccessful sterilisation 111

authorities relied on in Emeh were of doubtful status, depending, as they
did, on some uncertain US precedents.55 Even so, Emeh founded the
basis for later decisions in both England56 and Scotland.57
As Butler-Sloss LJ intimated in the later English case of Salih,58
these issues are often difficult to evaluate entirely unemotionally. For
this reason, the present writer regards the case of Walkin v. South
Manchester Health Authority59 as being particularly important. Here the
question, which arises surprisingly often, was couched simply in terms of
the application of the Limitation Act 1980, section 11 – did the expense
and tribulation of rearing the child constitute a personal injury60 resulting
from negligence giving rise to an unwanted pregnancy, or did they not?
Auld LJ was in no doubt:
In my view, it clearly did. It is true . . . that the claim depended on the birth of the
child, but the birth was not an intervening act; it was caused by the personal
injury, namely the unwanted pregnancy61
or, as summarised by Neill LJ: ‘There is one cause of action which arises
at the moment of conception.’62
It is concluded, therefore, that, until McFarlane had run its course, an
award of damages for the upkeep of an unexpected – albeit not, even-
tually, unwanted – child was acceptable under both English and Scots

55
Per Lord Hope in McFarlane, n. 54 above at AC 92. While I agree that the importance
attached to Sherlock v. Stillwater Clinic (1977) 260 NW 2d 169 by several courts of the
United Kingdom is disproportionate, it is to be noted that Purchas LJ quoted the case in
Emeh only ‘to identify the problem, not to solve it’. The same criticism as to ‘uncertainty’
might be levelled at the frequent reference to the ‘purely personal’ opinion of Ognall J in
an unreported case (Jones v. Berkshire Health Authority (1986) quoted in Gold v. Haringey
Health Authority [1986] 1 FLR 125; revsd [1988] QB 481).
56
Including Benarr v. Kettering Health Authority [1988] NLJR 179 where the precedent was
set for allowing expenses associated with private schooling.
57
Allan v. Greater Glasgow Health Board (1993) 17 BMLR 135, 1998 SLT 580. Evidence
that this was correct Scots law is to be found in two unreported cases: Pollock v.
Lanarkshire Health Board (1987) The Times, 6 January; Lindsay v. Greater Glasgow
Health Board (1990) The Scotsman, 14 March. Both were settled out of court and
ÂŁ50,000 was offered in compensation in the latter case.
58
Salih and another v. Enfield Health Authority (1991) 7 BMLR 1 at 4.
59
(1995) 1 WLR 1543.
60
In which case, an action would be barred after 3 years. Whether or not a normal unwanted
pregnancy can be regarded as an injury has been discussed in the preceding chapter,
particularly in comparison with wrongful birth. Emotion cannot be ruled out, however,
even in such a legal context. The judge frequently has to decide whether or not he or she can
exercise discretion under s.33 to release the petitioner from the shackles of s.11. See, for
example, Das v. Ganju (1998) 42 BMLR 28 (where, interestingly, it seems that the fetus, on
birth, could be regarded as ‘another person’ for the purposes of s.11) or, more recently,
Godfrey v. Gloucestershire Royal Infirmary NHS Trust [2003] EWHC 549, QB. Both these
cases were, significantly, cases of wrongful birth and discretion was exercised in both.
61
n. 59 above, at 1552. 62 ibid., at 1556.
112 The troubled pregnancy

law. The picture was, however, to change dramatically when Mr and Mrs
McFarlane brought their case to the Outer House of the Court of Session.


The case of Mr and Mrs McFarlane
McFarlane v. Tayside Health Board63 arose from a vasectomy performed
on Mr McFarlane in October 1989. In March 1990, having undergone
the necessary tests, he was informed that his sperm count was negative
and that he could safely resume sexual intercourse without contraceptive
measures. Mrs McFarlane, who already had four children, became preg-
nant in September 1991 and was delivered of a healthy female child in
May 1992. The child was subsequently admitted as a loved and integral
member of the family.
An action in negligence was raised against the Health Board and was,
as by now was standard practice, in two parts – the ‘mother’s claim’
in respect of pain and suffering due to pregnancy and childbirth and the
‘parents claim’ for the upkeep of the child until the age of majority.
The Lord Ordinary, Lord Gill, rejected both claims in the Outer
House. His reasons can be summarised in his own words:
In my view, a pregnancy occurring in the circumstances of this case cannot be
equiparated with a physical injury. Pregnancy and labour are natural processes
resulting in a happy outcome . . . Even if otherwise, I do not consider that it is an
injury for which damages are recoverable. I cannot see how [the happiness
Mrs McFarlane has and will have] can either be disregarded altogether or be
held not to outweigh the natural pain and discomfort in the creation of life.
I am of the opinion that this case should be decided on the principle that the
privilege of being a parent is immeasurable in money terms; that the benefits of
parenthood transcend patrimonial loss . . . and that the parents in a case such as
this cannot be said to be in a position of loss.64

The Inner House of the Court of Session then, unanimously allowed a
reclaiming motion.65 The reasons given by Lord Cullen LJ-C can be
summarised: the defenders’ contention that the costs of maintaining the
child could not be due to their negligence was unsustainable; it was
unwarrantable to assume that the birth of a child was a blessing in every
case; the principle that the value of a child outweighed its costs was not one
that was recognised in Scots law; and there were no overriding consider-
ations of public policy that would be contravened by awarding damages to

63
1997 SLT 211, OH; 1998 SC 389, (1998) 44 BMLR 140, IH; [2000] AC 59, 2000
SC 1, HL.
64
n. 63 above, SLT at 214, 216.
65
Thus, negligence was neither admitted nor proved. The defender’s duty of care to the
pursuers was, however, admitted.
Unsuccessful sterilisation 113

the pursuers. All three judges, as carefully explained by Lord McCluskey66
agreed that the concurrence of injuria (in this case the provision of incorrect
information) and damnum (prejudice to the McFarlanes’ legitimate inter-
ests in not having any more children) derived from conception and preg-
nancy and provided grounds for an action for reparation – and the costs of
rearing the child flowed directly from her conception.67
As we have already discussed, the vast majority of the courts that
have considered the matter have no trouble with seeing unwanted preg-
nancy and labour as an injury to the mother. It also seems self-evident that,
despite its being contrary to the majority of Commonwealth and American
decisions, the Inner House decision as to the parents’ claim was one that
would be anticipated under the normal rules of delict. The McFarlanes
wanted to avoid another child; they had another child due to the negligent
advice provided by someone who clearly owed them a duty of care; their
reasons for avoiding a further parentage were largely economic; and to
return them to the position in which they would have been in the absence
of negligence involved reparation of the costs of maintaining that child. To
my mind, justice was done by way of established legal principle.


McFarlane in the House of Lords
Thus it seemed that peace and uniformity was restored. England had
moved from the essentially moralistic position in Udale to the functional
approach adopted in Emeh. The majority of those engaged in the study of
medical jurisprudence would have regarded the decision of the Lord
Ordinary in the Outer House68 as a unique exception to the established
precedents and now Scotland had taken the same journey. Lord Slynn
was to say later:
Although these judgments refer to the law of Scotland . . . it is as I understand it
accepted that the law of England and that of Scotland should be the same in
respect of the matters which arise on this appeal. It would be strange, even absurd,
if they were not.69


66
n. 63 above at 1998 SC 400, BMLR 154.
67
For the meaning of injuria and damnum, see Chapter 3 at p. 86. As noted there, there is
no satisfactory English equivalent of the Scots concept of damnum; thus, while it is clearly
correct to invoke damnum in the Scots law of delict, it does, at the same time, circumvent
the difficulty elaborated in Udale of equating a natural process such as pregnancy with a
‘personal injury’.
68
McFarlane v. Tayside Health Board 1997 SLT 211. It is only fair to add that Lord Gill had
powerful support: e.g. P. S. Atiyah, The Damages Lottery (Oxford, Hart Publishing, 1997)
at 54.
69
McFarlane v. Tayside Health Board [2000] 2 AC 59 at 68, 2000 SC 1 at 4.
114 The troubled pregnancy

And, in fact, they now were and, at the time, referral to the House of
Lords was regarded by many as something of an obtrusion. On the other
hand, no comparable English cases had been referred to the highest legal
tribunal and an anxiety to ensure harmonisation of the law on such a
contentious subject was understandable. The unexpected twist lay in the
result. The House, by a majority, Lord Millett dissenting, held that a
woman who had undergone an unexpected and unwanted pregnancy was
entitled to damages for the pain, suffering and inconvenience of preg-
nancy and childbirth, but held unanimously that no recompense was
available for the upkeep of the resulting, healthy child.
It might be convenient at this point to dispose of ‘the mother’s claim’
and, at the same time, to consider the reasons for Lord Millett’s minority
view. Essentially, this depended on the application of logic. Few people
can have qualms as to the relevance of the mother’s claim for the suffering
of pregnancy and childbirth once negligence has been demonstrated.
Problems arise, however, when the two claims are taken as dependent
upon each other, as, on one view, they must be. Rearing one’s child
without having survived pregnancy and child birth is, currently, an
impossible concept and it can be seen as illogical to accept responsibility
for the one without the other. This was the route taken by the Lord
Ordinary in the Outer House and by Lord Millett in the House of
Lords. Each then concluded that both claims should be denied if one is
unacceptable – and this is where it is possible to part company with the
learned judges. It is not easy to understand why, given the same circum-
stances, it is not equally logical to hold that both claims should be upheld
if one is found acceptable – and it will be seen that this form of antithetic
argument arises at several points in the assessment of the case.
Irrespective of this particular point, however, those who would allow
one claim and deny the other must produce some reason for rejection of
what appears to be the evidence of nature. To do this, they must erect an
artificial legalistic construct by way of what Hoyano70 describes as a
‘slicing up of the professional relationship’ into several duties of care –
thus separating the loss in the form of the mother’s personal injury
from the economic loss involved in maintenance – and we will see that,
in one way or another, the remaining four Law Lords managed to achieve
such a modus vivendi. Given that one can accommodate such a formula,
the mother’s claim can be regarded as unexceptional; accordingly, the
remainder of this discussion is devoted solely to the joint claim for


70
Laura C. H. Hoyano, ‘Misconceptions and Wrongful Conceptions’ (2002) 65 Modern
Law Review 883–906 at 886.
Unsuccessful sterilisation 115

recovery of the costs involved in maintaining an unexpected, albeit
healthy, child during its minority.71
Given this limitation, then, all on the five Law Lords’ bench reached
the same conclusion but by very different routes and the House of Lords’
decision in McFarlane is famous not only for its surprise result72 but also
for the manner in which it was reached. Indeed, the major problem for
any later analyst, including a number of judges at first instance,73 has
been to find a consistent ratio – a fact which, ironically, has also served to
ease the paths of those anxious to circumvent the decision. As a result, an
understanding of McFarlane is impossible without a fairly extensive
review of the speeches and we will consider these in turn.74 Before
doing so, however, it will be convenient to dispose of some matters
which the House rejected as being significant to their conclusions.

Novus actus interveniens. Since the action for the upkeep of the
unexpected child depends upon there being a child for whom the parents
are responsible,75 it must be open to the defenders to argue that they
could have solved the problem either by lawful termination of pregnancy
or by arranging for the neonate’s adoption. This proposition was accep-
ted at first instance in Emeh where Park J was of the opinion that the
plaintiff’s refusal to terminate the pregnancy was so unreasonable as to
constitute a novus actus interveniens.76 This was strongly rejected on
appeal where Slade LJ considered that:

71
The fact that Lord Steyn referred to the action as one for ‘wrongful birth’ (at AC 76, SC
11) can be ascribed to a lapsus linguae. Lord Clyde also referred to ‘wrongful conception’
(at AC 99, SC 31) and I have described in Chapter 1 why I prefer the term ‘wrongful
pregnancy’. I see the two as being synonymous, but 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 for
further distinctions.
72
‘I can think of few decisions that are . . . as odious, unsound and unsafe as this one’: J. Ellis
Cameron-Perry, ‘Return of the Burden of the ‘‘Blessing’’’ (1999) 149 New Law Journal
1887–8. This is, obviously, an extreme view and certainly was not one that was univer-
sally held; nonetheless, it illustrates the intensity of the general reaction.
73
In particular, and as discussed in the previous chapter, Newman J in Rand v. East Dorset
Health Authority (2000) 56 BMLR 39, [2000] Lloyd’s Rep Med 181; Henriques J in
Hardman v. Amin [2000] 59 BMLR 58, [2000] Lloyd’s Rep Med 498; Toulson J in Lee v.
Taunton and Somerset NHS Trust [2001] 1 FLR 419, [2001] Fam Law 103.
74
See Mason, n. 40 above. Also Hoyano, n. 70 above; Penny Booth, ‘A Child is a Blessing –
Heavily in Disguise, Right?’ (2001) 151 New Law Journal 1738; Tony Weir,‘The
Unwanted Child’ (2000) 59 Cambridge Law Journal 238–41; Joe Thomson,‘Abandoning
the Law of Delict?’ 2000 SLT 43–5 and, particularly, the opinions in Rand, Hardman and
Lee, Chapter 3 above.
75
Children (Scotland) Act 1995, s.1; Family Law (Scotland) Act 1985, s. 1(1)(c).
76
(1983) The Times, 3 January. As a consequence, damages were awarded only for the
discomfort associated with the first four months of pregnancy.
116 The troubled pregnancy

The judge . . . was, I think, really saying that the defendants had the right to expect
that, if they had not performed the operation properly, she would procure an
abortion . . . I do not, for my part, think that the defendants had the right to expect
any such thing. By their own negligence, they faced her with the very dilemma
which she had sought to avoid by having herself sterilised.77
The approach taken by the Court of Appeal in Emeh was preceded, and
has been followed, almost without exception in all jurisdictions – not least
in McFarlane where Lord Steyn, for example, was unable to conceive
of any circumstances in which the decision of the parents not to resort to
even a lawful abortion could be questioned.78 Yet their Lordships, as
a whole, gave little reason for their unanimity on the question. Lord
Hope was content to accept that they had no other choice;79 Lord
Clyde stated only that: ‘the decision to keep the child, to accept into the
family a baby who was originally unwanted, cannot rank as an acting on
the part of the pursuers sufficient to break the causal chain’.80 Lord
Millett regarded the proposition that it is unreasonable for parents not
to have an abortion or place a child for adoption as far more repugnant
than the characterisation of the birth of a healthy and normal child as a
detriment.81 One feels that the majority would agree with those senti-
ments. The termination of pregnancy, and particularly a late pregnancy,
represents a decision that is of profound moral and medical significance to
the woman concerned and it must be within the anticipation of a tortfeasor
that she will reject it.82
But one has to look to the position of the defendants and ask whether
the concept is so unreasonable as to be dismissed out of hand. The House
of Lords quoted widely from the Australian case CES v. Superclinics
(Australia) Pty Ltd in which Priestly JA said:
The point in the present case is that the plaintiff chose to keep her child. The
anguish of having to make the choice is part of the damage caused by the negligent
breach of duty, but the fact remains, however compelling the psychological
pressure on the plaintiff may have been to keep the child, the opportunity of
choice was in my opinion real and the choice made was voluntary. It was this
choice which was the cause, in my opinion, of the subsequent cost of rearing
a child . . .


77
n. 50 above, at QB 1024.
78
n. 63 above, at AC 81, SC 15. This worrying aspect of ‘wrongful pregnancy’ is, however,
of greater general interest rather than of importance to the McFarlane decision.
79
ibid., at AC 97, SC 29. 80 ibid., at AC 104, SC 36. 81 ibid., at AC 113, SC 44.
82
Mitigation of damages by way of abortion or adoption was seriously considered in the
New Zealand case Re Z (1982) 3 NZAR 161. In the end, it was rejected as being
‘inappropriate in the circumstances’ (per Blair J at 163). This case is revisited briefly at
n. 89 below.
Unsuccessful sterilisation 117

The plaintiff having chosen to keep the child in the human way that . . . I think
most people in the community would approve of, is not entitled to damages for the
financial consequences of having made that difficult but ordinary human choice.83
Lords Steyn and Millett were, in fact, the only Law Lords to discuss this
aspect of causation in depth and the latter even offered grudging support
for this view. We are, however, effectively left to fend for ourselves in
establishing why it is unacceptable. The primary reason, it is suggested, is
that to hold otherwise would be to imply that abortion is available on
demand in the United Kingdom and, while I have argued that this is the
situation de facto,84 it certainly cannot be seen as that de jure.85 Even so,
some might wonder at the fairness of the win-win situation by which a
woman can chose to terminate or retain her fetus at will and, yet, never
lose her standing in the case. Secondly, as already noted, the moral
implications in electing for abortion are of such intensity and variety
that it could scarcely be right to lay down a rule as to the legal implications
of the decision reached. And, finally – and, perhaps, most importantly –
the majority would, one feels, agree with Lord Steyn that the law must
and does respect these decisions of parents which are so closely tied to
their basic freedoms and rights of personal autonomy.86
Perhaps the last word may be left to Lord Millett:
Catherine’s conception and birth, and the restoration of the status quo by
abortion or adoption, were the very things that the defenders were engaged to
prevent . . . The costs of bringing her up are no more remote than the costs of an
abortion or adoption would have been. In each case the causal connection is
strong, direct and foreseeable.87


‘Public policy’. Much of the reasoning in McFarlane is devoted to
considerations of ‘public policy’ – a life-line that, in the event, all were at
pains to reject. The phrase ‘public policy’ is not all that easy to define. It
was used first in the present context by Jupp J in Udale88 where, indeed, it
formed the basis of his decision. It might, therefore, be assumed that it is a

83
(1995) 38 NSWLR 47 at 84–5. CES is certainly not on all fours with McFarlane. In the
first place, it was an action for wrongful birth rather than wrongful pregnancy and,
secondly, New South Wales has no statute comparable to the Abortion Act 1967, the
law being currently based on R v. Bourne [1939] 1 KB 687. The case turned largely on
whether an abortion would have been legal and, in the end, was something of a com-
promise decision.
84
See Chapter 2 above.
85
This may be the reason for Lord Hope saying that the parents had no other choice.
86
It could be held that only the last consideration applies to adoption but, in essence, both
abortion and adoption are matters within a woman’s freedom of reproductive choice.
I return to the problems of abortion, adoption and autonomy in Chapter 8.
87
n. 63 above, at AC 113, SC 44. 88 n. 39 above.
118 The troubled pregnancy

recognised feature of ‘public policy’ that damages should not be awarded
for the birth of a healthy child – albeit one that is unintentionally con-
ceived as a result of another’s negligence. But, as Lord Clyde indicated, it
is difficult to find any policy ground supporting one course of action in the
resolution of wrongful birth (using his Lordship’s terminology) without
unearthing a countervailing consideration that points to the opposite
conclusion. Moreover, there is no reason to suppose that a negative policy –
that is, that there is no public policy contrary to a suggested solution –
presupposes a positive policy to the effect that that solution should be
adopted.89
In the event, the House unanimously excluded public policy as a basis
for their reasoning – the issue was to be settled by recourse to principle.
The difficulty, at least for this writer is, however, that, while the two are
theoretically quite separate, they are in practice often difficult to distin-
guish. If, for example, as Lord Slynn proposed, the question of whether
reparation for the expenses incurred in the upbringing of a loved child is
resolved by way of legal principle, it is not easy to distinguish the result
from a formulated policy. Or, where lies the difference between applying
the principle of distributive justice and accepting that principle as a
matter of policy? – a distinction which Lord Steyn managed to make
with ease.90 In fact, Lord Bingham was, later, to refer to the ‘policy
considerations’ that underpinned the judgments of the House.91
Among these was a concern that:
to award potentially very large sums of damages to the parents of a normal and
healthy child against a National Health Service always in need of funds to meet
pressing demands would rightly offend the community’s sense of how public
resources should be allocated.92


89
The present writer is attracted by the down to earth approach in the New Zealand case
Re Z, n. 82 above. In partially pre-empting the McFarlane decision, Judge Blair unhes-
itatingly relied on public policy as to the setting of limits to liability. The expenses relating
to the birth of a child were allowed but it was held that the necessary ‘intimate causal
relation’ between the medical error and the expenses involved disappeared as the child
got older; a line had to be drawn between the direct and indirect causes of an ‘accident’.
The conditions were, however, peculiar to New Zealand in that the case concerned a
claim under the Accident Compensation Act 1972 which imposes a ‘stern test’ as to the
remoteness of damage.
90
Hoyano, n. 70 above, at 889, also points to Lord Millett’s unsolved conundrum: ‘Legal
policy is not the same as public policy, even though moral considerations may play a part
in both’ (n. 63 above, at AC 108, SC 39).
91
In Rees v. Darlington Memorial Hospital NHS Trust [2004] AC 309, [2003] 4 All ER 987 at
[6]. See also Lord Nicholls at [16].
92
Which is coming close to involvement in rationing in the NHS, something that the courts
have eschewed since R v. Secretary of State for Social Services and ors, ex p Hincks (1980)
1 BMLR 93, CA.
Unsuccessful sterilisation 119

Indeed, one commentator has remarked that the House blocked the
McFarlanes’ claim:
for reasons of a ‘legal policy’ which, stripped of all linguistic embroidery, boils
down to protecting the NHS . . . from expensive claims when ‘nothing worse
happened than the birth of a healthy if unwanted child’.93
This may be a trifle hyperbolic and, perhaps, unjustified. Nevertheless,
the ‘policy’ issue may be of considerable jurisprudential importance –
Lord Clyde, for example, was wary lest the House should encroach on
responsibilities which attach to the legislature rather than the courts.
Lord Hope, for his part, believed the question for the court to be one of
law, not of social policy and considered that the remedy lay in the hands of
the legislature if the law was found to be unsatisfactory.94 But the com-
mon law remains the common law no matter how it has been established
and those involved in cases of wrongful pregnancy are now bound by the
decision in McFarlane until it is superseded.

The disparate reasoning. So, what were the principles on which
this dramatic sea-change was based? Each of the five judges involved gave
individual reasons for allowing the defenders’ appeal – and it has to be
admitted that none appears wholly satisfactory to an observer who has no
formal training in the law.95
Lord Slynn, pointing to the fact that the issue was one of the extent of
the duty of care and of liability for economic loss,96 simply applied the
Caparo standard97 and considered it neither fair, just or reasonable to
impose on the doctor ‘liability for the consequential responsibilities,
imposed on or accepted by the parents to bring up a child’. A line is to
be drawn before such losses are recoverable – but how fair, just or
reasonable is it from the parents’ point of view to do so? Lord Slynn did
not comment on the question but it has been pointed out that this test,
itself, allows for a different interpretation in the event of a child being


93
A. Pedain, ‘Unconventional Justice in the House of Lords’ (2004) 63 CLJ 19.
94
Hoyano, n. 70 above, at 890, points out that this is an interesting comment insofar as the
court was changing case law that had gone unchallenged for 15 years. The strong reaction
on the part of the Australian legislatures noted at n. 179 below is, however, to be
remarked.
95
It is interesting to note in another contemporaneous case that much the same arguments
as were invoked can also be used to reach a different conclusion. See Mukheiber v. Raath
and Raath (1999) http://www.uovs.ac.za/law/appeals/26297.htm (20 January 2000) – a
case heard in the Supreme Court of Appeal of South Africa under the Roman-Dutch
jurisprudence.
96
Drawing very much on Stewart, n. 42 above.
97
Caparo Industries plc v. Dickman [1990] 2 AC 605, [1990] 1 All ER 568.
120 The troubled pregnancy

born disabled.98 He was, however, strongly supported by Lord Hope who
also played the Caparo card and, in addition, stressed that, in the absence
of a threshold, liability could be stretched almost indefinitely so as to
include, for example, the costs of a private education for the resultant
child.99 Lord Hope’s reasons for rejecting any restitution are, however,
less easy to accommodate:
It cannot be established that, overall and in the long run, these costs [of meeting
the obligations to the child during her childhood] will exceed the value of the
benefits. This is economic loss of a kind which must be held to fall outside the
ambit of the duty of care which was owed . . . by the persons who carried out
the procedures in the hospital and the laboratory.100

One wonders why this constitutes a sequitur – and Lord Hope’s analysis is
considered again below.
Reasonableness as to the extent of liability was also considered by Lord
Clyde who believed that it includes an element of proportionality
between the wrongdoing and the resulting loss suffered. Lord Clyde
found it difficult to accept that, in a case such as McFarlane, there
would be any reasonable relationship between the fault and the claim
‘such as would accord with the idea of restitution’ and he thought that the
expense of child rearing could be wholly disproportionate to the doctor’s
culpability – a reason for limiting liability which was, incidentally, speci-
fically rejected by Lord Millett. Once again, it is possible to argue from
the other side – that the costs to the McFarlanes were wholly dispropor-
tionate to those anticipated when they acted on advice to resume non-
contraceptive sexual intercourse.
Lord Millett’s analysis of the principles involved was, possibly, the
most comprehensive but is also the most difficult to interpret.101 This is
because, although he appeared to be the most anxious of the judges that
the McFarlanes should ‘not go away empty handed’, he was, in the end,
almost forced, by a process of elimination, to conclude that the reason
why the costs of bringing up the child should not be recoverable lay in the
fact that the law must take the birth of a normal, healthy baby to be a
blessing, not a detriment – in other words, he joined hands with Jupp J in
Udale and Lord Gill in the Outer House in McFarlane in making what can
only be seen, pace Lord Gill, as a policy decision. Lord Millett concluded:

98
See Newman J in Rand, n. 73 above, at BMLR 44, Lloyd’s Rep Med 184.
99
Benarr v. Kettering Health Authority, n. 56 above, has much to answer for as to its
influence in McFarlane.
100
n. 63 above, at AC 97, SC 29.
101
Lord Millett’s distinction between the recovery of costs for, on the one hand, acquiring
and, on the other, replacing a high chair is an interesting detail.
Unsuccessful sterilisation 121

It would be repugnant to [society’s] own sense of values to do otherwise. It is
morally offensive to regard a normal, healthy baby as more trouble and expense
than it is worth.102
Lord Steyn almost hoed a row of his own in a direct appeal to distri-
butive justice and, thereby, to the common man. It may, he said, become
relevant to ask commuters on the Underground the following question:
Should the parents of an unwanted but healthy child be able to sue the doctor or
the hospital for compensation equivalent to the cost of bringing up the child for
the years of his or her minority – i.e. until about 18 years?103
and his view was that an overwhelming number of ordinary men and women
would answer the question with an emphatic ‘no’. Well – maybe; but very
few of the commuters on the Underground are already striving to bring up
four demanding children – and we will return to the commuter later on.104
There are a number of other difficulties in Lord Steyn’s approach. In
the first place, he did not explain how justice was to be distributed in the
present case. If pressed, he said, he would say that the claim did not satisfy
the requirement of being fair, just and reasonable – but this is no explan-
ation and, as we have seen, fairness depends very much on the viewpoint;
it is quite easy to visualise the McFarlane decision as an example of
distributive injustice. Secondly, he relied on the twin cases of Alcock v.
Chief Constable of South Yorkshire Police105 and Frost v. Chief Constable of
South Yorkshire Police.106 Neither of these cases is particularly satisfying.
One may have little sympathy for police officers who claim damages for
carrying out duties for which they have been trained and paid; but to deny
them compensation on the grounds that others were ineligible seems very
like the fable of the ‘sour grapes’ – not, as Lord Steyn suggested, the
language of distributive justice. Thirdly, in a search for coherence, Lord
Steyn quoted the case, and deprecated the result, of McKay v. Essex Area
Health Authority107 in which an action for damages by a child born handi-
capped was rejected while the parallel action by her mother was allowed
to proceed108 – and this was regarded, rightly I believe, as incoherent.
But, again, the two actions are, in fact, distinct entities. The former – for

102
n. 63 above, at AC 114, SC 44. 103 ibid., at AC 82, SC 16.
104
In passing, the comments of Singer on a later, but closely allied case, deserve repetition
here: ‘It is not acceptable for our judiciary to make sweeping statements about society’s
sensibility without justifying it. It does not naturally follow that, because a baby is a
blessing, parents should not be compensated for the ensuing financial loss when an
unintended child is born due to the fault of another’: – S. Singer, ‘Rees v. Darlington
Memorial Hospital NHS Trust [2004] 1 AC 309’ (2004) 26 Journal of Social Welfare and
Family Law 403–15 at 409.
105
[1992] 1 AC 310. 106 [1998] QB 254. 107 n. 46 above.
108
Inferred from Stephenson LJ, ibid., at QB 1175.
122 The troubled pregnancy

‘wrongful life’ which we discuss in Chapter 6 – implies, inter alia, that the
defective fetus has a right to be prevented from living, a proposition which
has been rejected in the vast majority of jurisdictions.109 The latter – for
‘wrongful birth’ – is one seeking compensation for the costs and anguish
resulting from negligently depriving a woman of a choice available to her
under the Abortion Act 1967, section 1(1)(d). The one does not depend
upon the other although, as we will see later, the two actions are almost
invariably taken in parallel and similar reasoning is applied in both. Even
were it otherwise, to disallow the parental action simply because of the
inadmissibility of the neonate’s seems to be an example of equating two
wrongs with a right. In the end, it is hard to identify any gain from
applying the essentially moral doctrine of distributive justice to the solu-
tion of a wrongful pregnancy.
Thus, we are left wondering what is the true ratio of McFarlane and,
more importantly, what it was that drove the House to make such a
dramatic U-turn on such a united front. All the opinions contain at
least a modicum of moral reasoning and my own view is that this centres
on the problem of ‘offset’ where there is a clear clash of interests.
On the one hand, their Lordships were confronted by the established
principle that some offset for the attending benefits must be included in
the assessment of damages for another’s negligence so long as the two are
commensurate. But, in the present circumstances, this involves, firstly,
the problem of comparing the emotional advantages of parenthood with
its financial disadvantages and, as a consequence, of putting a monetary
value on the life of a child. The combined difficulty was expressed by
Lord Millett:
There is something distasteful, if not morally offensive, in treating the birth of a
normal, healthy child as a matter for compensation. I cannot accept that the
solution lies in requiring the costs of maintaining the child to be offset by the
benefits derived from the child’s existence . . . The placing of a monetary value on
the birth of a normal and healthy child . . . provides no solution to the moral
problem. The exercise must either be superfluous or produce the very result
which is said to be repugnant.110
And he was fully supported by Lords Slynn and Steyn. Lord Hope
expressed what seem to be the sentiments of the House in saying that
the value which is to be attached to these benefits [of rearing a child] is incalcu-
lable. The costs can be calculated but the benefits, which in fairness must be set


109
See Amos Shapira, ‘‘‘Wrongful life’’ Lawsuits for Faulty Genetic Counselling: Should
the Impaired Newborn be Entitled to Sue?’ (1998) 24 Journal of Medical Ethics 369–75.
110
n. 63 above, at AC 111, SC 42.
Unsuccessful sterilisation 123

against them, cannot. The logical conclusion, as a matter of law, is that the costs to
the pursuers of meeting their obligations to the child . . . are not recoverable
as damages.111
One must, of course, bow to his Lordship on a matter of law but it is
difficult to see where the logic lies. The net costs to the parents of rearing
the child are the gross costs less the beneficial ‘offsets’. Admittedly, the
latter cannot be assessed in the same terms as the former and the arith-
metic is going to be difficult – but there is no logical basis for saying that,
because of this, the costs have been wished out of existence. Lord Slynn, in
particular, would not assume that the benefits of parenthood always
outweighed their cost but, having described the many difficulties in
estimating either, he concluded that the problems were of such gravity
as to discourage the acceptance of the ‘benefits’ approach. On his own
admission, however, it could be done, and the fact that a process is difficult
seems a lame reason for discarding it absolutely – and, then, in favour of
one which appears unfair to an aggrieved person.
I believe that the moral problems which have so beset their Lordships
are, at least, minimised if one accepts that the McFarlanes’ action is not
about the resultant child but is simply a matter of the costs of the resultant
child. This is not a wholly novel conclusion – the Australian A-CJ Kirby
was widely quoted to the effect:
In most cases, it was not the child as revealed that was unwanted. Nor is the child’s
existence the damage in the action . . . It is the economic damage which is the
principal unwanted element, rather than the birth or existence of the child as such.112
Once this is accepted, the moral opprobrium associated with apparent
commodification of an infant is avoided. True, several difficulties remain
but, at least, the consequences of whether the child is loved or unloved are
eliminated. However, given that the unsought child is loved, it can still be
argued that the parents who are compensated are, so to speak, ‘getting
something for nothing’. But this is nothing new – Lord McCluskey’s
quoted example of the miner who is compensated for injury sustained
in the pits but who is not disadvantaged if he subsequently enjoys life in
the open air113 is a compelling analogy.
It leads, however, to the concept of a ‘conventional child’ which I have
previously suggested as a possible construct for reconciling the opposing

111
ibid., at AC 97, SC 29.
112
CES, n. 83 above at 75. It will be remembered that this is also one reason why damages for
wrongful birth are so much more acceptable to the courts – in the latter case, a direct
comparison can be made between the costs of rearing a healthy child and those of caring
for a disabled child. The value of a child qua child does not enter the equation.
113
n. 63 above, at 1998 SC 403, 44 BMLR 156–7.
124 The troubled pregnancy

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