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6
Emeh v. Kensington and Chelsea and Westminster Area Health Authority [1985] QB 1012,
[1984] 3 All ER 1044.
Uncovenanted pregnancy and disability 153

independently of his mother’s resources7 and those based on loss of
amenity were reduced by ‘a modest amount’ to represent what little joy
and comfort could be derived from the child’s existence – a form of ‘offset’
which would not now be applicable and is discussed further at p. 157. In
addition, however, an award of ÂŁ22,500 was made to reflect the stresses
and responsibilities inherent in caring for a severely handicapped child.
In the end, Taylor teaches us very little save to demonstrate once again
that, illogical though it may be following McFarlane,8 the courts will strive,
when they can, to provide support for those subject to the expense and
hardship of caring for a disabled child as a result of negligence of no matter
what type. Taylor was heard as McFarlane was on its way to the House of
Lords and, in many ways, it is a pity it was not appealed as it seemed to be
the ideal test of the McFarlane exception.9 As a result it can be in no way
precedental and, for this, we must look to the case of Mrs Parkinson.

Mrs Parkinson’s case
On the face of things, Parkinson v. St James and Seacroft University
Hospital NHS Trust10 fulfils all the criteria one needs by which to analyse
the ‘McFarlane exception’. Here, the claimant had undergone an admit-
tedly negligent sterilisation by way of tubal occlusion. Some ten months
later, she conceived a child and was warned that it might be disabled.
There is some difficulty here in that the extent of the warning is unclear
in the report; my own interpretation is that it was non-specific and,
although it may appear to be an example of so-called defensive medi-
cine, it did no more than refer to the fact that some 0.3 per cent of
otherwise unremarkable pregnancies may result in a disabled child.11



7
Thus pre-empting Henriques J in Hardman v. Amin for discussion of which, see Chapter 3.
8
And, as we will see, was strenuously argued by the minority in Parkinson below.
9
On reflection, I am not so sure of this as it is difficult to glean from the report when John
Taylor’s disability became apparent. I consider this problem further, below, when dis-
cussing Parkinson. The seldom discussed case of Robinson v. Salford Health Authority
[1992] 3 Med LR 270 is comparable to both Taylor and Parkinson insofar as the costs of
the child’s upkeep were deemed recoverable, including those resulting from speech
defects and behavioural problems which appeared some time after a premature birth.
But beyond that, it is now an old case, the report is brief and I doubt if it adds anything
significant to the jurisprudence.
10
[2002] QB 266, [2001] 3 All ER 97. Once again, I have published my views on the case
previously in J. K. Mason, ‘Wrongful Pregnancy, Wrongful Birth and Wrongful
Terminology’ (2002) 6 Edinburgh Law Review 46–66.
11
Certainly it was agreed that any disability from which the child suffered was not caused
by any breach of duty on the defendant’s part (Parkinson, n. 10 above, at QB [11],
my emphasis).
154 The troubled pregnancy

This raises a parenthetic, albeit, in the context of this book, important
question of the quantification of risk within the laws of tort. Waller LJ had
this to say in Emeh:
[I]n my judgment, having regard to the fact that in a proportion of all births –
(between one in two hundred and one in four hundred were the figures given at
the trial) – congenital abnormalities might arise, makes the risk clearly one that is
foreseeable, as the law of negligence understands it.12
From which one can surely extrapolate that civil law regards the inherent
risk of having a disabled child as a material risk.
What, then, is the relationship between a risk that is clearly foreseeable
under the law of negligence and one that is substantial in the criminal law
of England or the common law of Scotland? In short, is it to be implied
that a termination under the Abortion Act 1967, section 1(1)(d) – which,
as we have seen, refers to lawful termination in the event of a substantial
risk that the child will be born seriously handicapped – will always be
lawful on the grounds of foreseeability? Or, to put it another way, is the
materiality of risk to be equiparated with the substantiality of risk – at least
for the purposes of abortion law? Probably, the introduction of the word
‘seriously’ is likely to distinguish the 1967 Act as Waller LJ’s figures make
no mention of the degree of harm involved. Nonetheless, his dictum raises
once again, but in a different guise, the question which we have discussed
at p. 28 of whether it is possible to perform an indefensible termination in
Great Britain.13
In any event, that diversion aside, Mrs Parkinson chose not to have a
termination. While this is immaterial to causation – insofar as we have
seen consistently that, since Emeh,14 a woman cannot be coerced in this
way so as to absolve the wrongdoer of responsibility – the scenario as a
whole indicates that Parkinson cannot be dismissed as an action for
wrongful birth, a distinction that Brooke LJ also emphasised.15 In the
event, the judge at first instance awarded damages for the costs of provid-
ing for the child’s special needs but not for the basic costs of his main-
tenance. The defendants appealed against the former decision and the
plaintiff against the latter.



12
[1985] 1 QB 1012 at 1019.
13
One must also note that there is no certainty that Waller LJ would be followed. See the
opinion of Lord Scott quoted at n. 79 below.
14
n. 6 above.
15
At [48]. Thereby agreeing with the present writer that cases such as Rand, Hardman and
Lee (for which see pp. 90–7, above) are irrelevant in the context of the wrongful preg-
nancy debate.
Uncovenanted pregnancy and disability 155

On appeal, Brooke LJ undertook the by now almost mandatory analysis
of the McFarlane case and, like so many before him, found that he had to
pick out the several threads of argument and use them as best he might in
the altered circumstances. He began by assuming the mantle of Waller LJ
in Emeh in holding that the birth of a child with congenital abnormalities was
a foreseeable consequence of a careless failure to clip the fallopian tubes.
The italics are mine and I have used them merely to emphasise my strong
doubts, as discussed above, as to the validity of that conclusion. Certainly
it is foreseeable – indeed, it is incontrovertible – that a pregnancy may lead
to a disabled child; but it is vastly more probable that it will lead to the birth
of a normal child and it is this that must be uppermost in the mind of the
surgeon.16 Moreover, the surgeon is concerned with birth and the most
that can be said in the case of Scott Parkinson is that, at that time, he
suffered from no more than a latent disability.17 Nonetheless, we must
accept that this was the foundation stone of Lord Justice Brooke’s argu-
ment which went on to find no difficulty in principle in accepting the
proposition that the surgeon should be deemed to have assumed respon-
sibility for the ‘foreseeable and disastrous economic consequences’ of his
negligence; but he did not elaborate on this and, while one can equally
happily accept the principle, it is not easy to see why one should do so in
the case of a disabled child when Lords Slynn and Hope found it so hard
to do so when the child was normal. Brooke LJ continued that the
purpose of the operation was to prevent Mrs Parkinson from conceiving
any more children, including children with congenital abnormalities, and
the surgeon’s duty of care was strictly related to the proper fulfilment
of that purpose. Crunchingly, he pointed out that parents in a similar
position had been able to recover damages during the 15 years between
Emeh and McFarlane so that to accept the claim was not a step into the
unknown – which leads one to wonder why, since those damages had
included damages for the birth of a normal child, the House of Lords
were so anxious to avoid the obvious. In Mrs Parkinson’s case, the
tests of foreseeability and proximity set out in Caparo18 were satisfied.
Accordingly, an award for looking after a child with serious disability
which was limited to the special costs would be fair, just and reasonable –
a conclusion which would be supported, if necessary, by an appeal to
distributive justice as represented by ordinary people who would be

16
It is interesting that Lord Scott in the House of Lords in Rees v. Darlington Memorial
Hospital NHS Trust, n. 37 below, felt the same way and, in fact, used it as a main reason
for considering Parkinson to have been wrongly decided: Rees at [147].
17
There are many parallels between Parkinson and the hard to classify case of Groom v. Selby
which has been discussed above at p. 146.
18
Caparo Industries plc v. Dickman [1990] 2 AC 605, [1990] 1 All ER 568 per Lord Bridge.
156 The troubled pregnancy

satisfied if an award was limited to the extra expenses associated with the
child’s disability.19
In this writer’s view, Lord Justice Brooke can be seen as steering his way
between Scylla and Charybdis. To him, the course of action which he
proposed was inevitable in terms of both logic and justice – and I certainly
agree that, at least as to the latter, it is an advance on McFarlane.
Significantly, in concentrating entirely on the disabled infant, its main
effect, pragmatic though it may be, is to dissociate the reasoning in the
event of the unwanted birth of a disabled child from that applied in
McFarlane. Thus, as the Lord Justice himself pointed out, there is nothing
in his decision that conflicts with that in the House of Lords20 – effec-
tively, he neither agrees nor disagrees with the latter, and the two cases are
held as being quite distinct rather than as derivative.21
By contrast, the analyst is left in no doubt when we turn to the opinion
of Hale LJ. In what might be termed flamboyant style – or, as character-
ised by Hoyano, a tour de force22 – she introduced the very contemporary
assumption that to cause a woman to become pregnant against her will is
an invasion of her right to bodily integrity. It is an interesting observation
that Lady Hale is, I believe, the only female judge, apart from Holmes J in
the Supreme Court of Queensland,23 to have been quoted thus far in
this book which, throughout, is devoted to a condition that is almost
entirely in the province of women – as Lady Hale pointed out in referring
to child care: ‘there are undoubted and inescapable differences between
the sexes here’.24 She then went on to drive home this point by listing
some of the consequences of that condition which, because they should

19
Although, rightly, holding that the United States decisions are of little use in the present
context because of their variance, Brooke LJ called in aid the relatively recent decision in
Emerson v. Magendantz 689 A 2d 409 (R. I., 1997) and its precursor from the opposite
end of the country Fassoulas v. Ramey 450 So 2d 822 (Fla., 1984) both of which pre-
empted the House of Lords as to refusal of maintenance for healthy children but allowed
the special upbringing costs associated with disability. Indeed, he found these cases
persuasive to the extent that he was anxious to arrive at the same answer (n. 10 above,
at [50]).
20
ibid., at [51].
21
Almost as an aside, Brooke LJ opined that, in considering distributive justice, ‘ordinary
people’ would approve an award that was limited to the extra expenses associated with
significant disability in the child and, by implication, would not approve those associated
with rearing a normal child (ibid., at [50]). The same comment was made picturesquely
by Longmore J at first instance in Parkinson. This author still doubts the basis for this
belief. For comment on the significance to the law of tort as a whole by one who was
involved in the case, see Margaret Bickford-Smith, ‘Failed Sterilisation Resulting in the
Birth of a Disabled Child: The Issues’ (2001) 4 Journal of Personal Injury Law 404–10.
22
Laura C. H. Hoyano,‘Misconceptions and Wrongful Conceptions (2002) 65 Modern
Law Review 883–906 at 897.
23
Melchior v. Cattanach [2000] QSC 285. 24 n. 10 above, at [63].
Uncovenanted pregnancy and disability 157

never have happened, remained invasive despite the fact that they derived
from a natural process. The list is impressive and the opinion needs to be
read in the original if one is to capture its emotional and emotive nature.25
It includes the profound physiological and psychological changes that
occur during pregnancy and for some time thereafter; these are accom-
panied by a severe curtailment of personal autonomy – ‘one’s life is no
longer just one’s own but also someone else’s’. The mother can rid herself
of that responsibility only by way of abortion or adoption – and it was the
unanimous view of the House of Lords in McFarlane that the former, at
least, was not a reasonable expectation.26 The process of giving birth is
‘rightly termed ‘‘labour’’’ and the hard work does not stop after preg-
nancy. Tellingly, Hale LJ recalled the requirements of the Children Act
1989 and reiterated that parental responsibility is not just a matter of
financial responsibility – the primary responsibility is to care for the child
and bringing up children is hard work:
Here the care is provided by the very person who has been wronged and the legal
obligation to provide it is the direct and foreseeable consequence of that wrong. It
is, perhaps, an indication of the reluctance of the common law to recognise the
cost of care to the carer that claims for wrongful conception and birth of healthy
children have not previously been analysed in this way. . . . The law has found it
much easier to focus on the associated financial costs . . . [which] are not inde-
pendent of the caring responsibility but part and parcel of it.

In short, all such consequences ‘flow inexorably from . . . the invasion of
bodily integrity and personal autonomy involved in every pregnancy’ and
the mother’s financial claim ‘obviously represents the consequences of
the fundamental invasion of her rights, which is the conception itself’.27
Thus, in following a clear consequentialist path, Hale LJ found that,
once it was established that the pregnancy was caused wrongly, nothing
unusual or contrary to legal principle was involved in awarding damages
in a case such as Mrs Parkinson’s. She clearly supported the Inner House
decision in McFarlane28 and pointed out that a majority of the House of
Lords had accepted that, on normal principles, the McFarlanes’ claim
would have been allowable. The stumbling block rested on the ‘feeling’
that to compensate for the financial costs of bringing up a healthy child
was a step too far – somehow room had to be made for the benefits to be
derived from the presence of a new child; since these, in practice, were
impossible to define, the solution was either to ignore the benefits

25
ibid., at [63]–[71].
26
ibid., at [66] quoting [2000] 2 AC 59 at 74, 81, 97, 105 and 113. See also [69].
27
ibid., at [73].
28
McFarlane v Tayside Health Board 1998 SLT 307, (1998) 44 BMLR 140.
158 The troubled pregnancy

altogether or to assume that they cancelled out the claim.29 Insofar as
majority support for this last contention is nowhere evident in the House
of Lord’s opinions, it is strange that Lady Hale held that the solution
of the ‘deemed equilibrium’ was binding on the Court of Appeal.30
Nonetheless, and although she thought it limited the damages that
would otherwise have been recoverable on normal principles, it repre-
sented the cornerstone of her ultimate analysis. It accepted the limitation
on damages imposed in McFarlane which catered for the ordinary costs of
the ordinary child; there was, therefore, no need or reason to take that
limitation any further. The principle of equilibrium applied to the dis-
abled child ‘treats a disabled child as having exactly the same worth as a
non-disabled child . . . It simply acknowledges that he costs more.’31 In
the event, both appeals were dismissed unanimously; permission to
appeal to the House of Lords was refused and, significantly, that decision
has not been challenged.
The sheer length of this ‘precis’ indicates the importance I attach to
´
Parkinson which seems to be, in its own way, as significant a case as was
McFarlane, despite the fact that it was decided in a lower court. This is for
several reasons. Firstly, the two main speeches, argued as they were from
very different angles, are complementary to one another and certainly fill
the gap left in McFarlane in relation to the disabled child resulting from
a wrongful pregnancy. In the light of the very powerful arguments
expressed, it seems unlikely that the rule awarding special damages in
such circumstances will be significantly disturbed – although its logic
remains to be debated.32 At the same time, Parkinson can be seen as a
superior court’s approval of – or, indeed, a form of de facto appeal in
respect of – the several first instance decisions in cases of wrongful birth
that we have discussed in the previous chapter.
Secondly, and with the greatest respect to Brooke LJ, the inherent
importance of the report is enhanced by the speech of Hale LJ which, as
has been noted above, is of special significance not only because it comes
from a woman who has had and has brought up a child but more so



29
n. 10 above, at [87], quoting Lord McCluskey in the Inner House at 1998 SLT 307, 317.
Lord McCluskey went on to explain that, essentially, it depended on the financial status
of the parents.
30
ibid., at [90]. It was, of course, questioned by Robert Walker L J in the Court of Appeal
stage of Rees v. Darlington Memorial NHS Trust [2003] QB 20.
31
ibid., at [90].
32
See p. 165 below. There are, however, some doubts as to the effect of the ‘conventional
award’ proposed in Rees v. Darlington Memorial NHS Trust [2004] AC 309, for which, see
p. 176 below.
Uncovenanted pregnancy and disability 159

because it is the only woman’s opinion on the subject among the United
Kingdom cases. To quote from her speech:
The studied calm of the Royal Courts of Justice, concentrating on one point at a
time, is light years away from the circumstances prevailing in the average home
[where] the mother is . . . doing all the other things that the average mother has to
cope with simultaneously, or in quick succession, in the normal household.33

In my opinion, the substitution of this vision of motherhood as a con-
tinuing process from conception to the moment when the chick flees the
nest for the restricted concept of pregnancy forces us to look at wrongful
pregnancy in a completely new light. The ‘damage’ lies in the uncove-
nanted invasion of and distortion of a woman’s – and, perhaps, a family’s –
life over many years. I have said that I regard Parkinson as every bit as
important as McFarlane and I still believe that one should have the former
in one hand when reading the latter in the other.
At the same time, Lady Hale did consider the difficulties associated
with the Parkinson decision; these included that of defining the degree
of disability which separates the disabled from the healthy child and,
secondly, that of agreeing a cut-off point in time beyond which the
responsible surgeon can no longer be held liable. As to the former, she
proposed adopting the language of the Children Act 1989, s.17(11) in
which a disabled child is one:
[who is] blind, deaf or dumb or suffers from mental disorder of any kind or is
substantially and permanently handicapped by illness, injury or congenital
deformity or such other disability as may be prescribed.
For myself, I see this as doing no more than defining severe disability – it
does not help in telling us the point at which we can identify a disabled
child. To do that, we can, surely, use a more simplistic approach which
says, in effect, that a disabled child is one who is agreed to be disabled
either by the parties concerned or by the court. This would allow for
acknowledgment of any genuine disability and would, at the same time,
inhibit the frivolous claim in that, in the event of disagreement, the court
could award either no damages or damages of such minimal value as to
make the action economically unsound.
It will already be clear that I regard the cut-off factor as probably the
weakest chink in the Parkinson armour. Hale LJ herself concluded that, of
the two serious contenders for the end-point of professional liability, birth
was to be preferred to the alternative of conception and that:


33
n. 10 above, at [70] quoting Surtees v. Kingston-upon-Thames Royal B.C. [1991] 2 FLR
559 per Sir Nicholas Browne-Wilkinson V-C at 583.
160 The troubled pregnancy

[A]ny disability arising from genetic causes or foreseeable events during preg-
nancy (such as rubella, spina bifida, or oxygen deprivation during pregnancy of
childbirth) up until the child is born alive, and which are not novus actus inter-
veniens, will suffice to found a claim.34
This passage contains a number of conundra which merit consider-
ation before returning to the main theme. In the first place, it seems to
equate wrongful birth with the McFarlane-exception and, while it may be
advantageous to confirm the validity of the currently unchallenged
Rand–Hardman–Lee decisions, it is confusing to do so in this manner.
Second, the dispenser of distributive justice would, one feels, rebel at the
thought of the sterilising surgeon being held liable for the negligence of
the obstetricians whose potential liability in cases of birth injury is already
well-recognised. On this view, therefore, to base such disabilities on a
claim under the Parkinson mantle is something of a tautologism. The
more complex problem raised, however, lies in what is to be excluded
under the term novus actus interveniens. It is suggested that, given the
context of the wrongful pregnancy action, and given the observations
above, a relevant novus actus can only arise by way of negligence by those
responsible for overseeing the pregnancy and labour. If, however, a court
was to hold that their conduct at this stage was not negligent – but,
nevertheless, the child was born disabled – then Hale LJ’s dicta direct us
backwards in time to the negligence of the sterilising surgeon. The impli-
cation, then, is that she is opening up an additional route to compensation
for the uncovenanted birth of a disabled child.35 Lady Hale gave no
indication of her intentions. Those who feel that the ‘victim’ of the
McFarlane-exception deserves recompense in any circumstances would,
no doubt, welcome the latter interpretation. On the other hand, it is
difficult to avoid the impression that to hold the surgeon responsible for
others’ obstetric practice would come close to offending all three limbs –
foreseeability, proximity and fairness – of the Caparo test. I know of no
apposite case but one is sure to come – when it will be interesting to see
whether the courts will be prepared to allow the affected woman what is,
effectively, a second bite of the cherry.
To return, however, to the most significant of the problems posed by
Lady Hale – should we, and how are we to, limit the time beyond which
the surgeon’s liability ceases? This difficulty is built in to Parkinson itself


34
ibid., at [92].
35
There are, of course, very many hypoxic birth injury cases – including the truly seminal
case of Whitehouse v. Jordan [1981] 1 All ER 267, [1981] 1 WLR 246, HL – where
negligence has been rejected, often on Bolam grounds. I have in mind similar cases which
involve an uncovenanted child.
Uncovenanted pregnancy and disability 161

insofar as, while it is true Scott Parkinson did not thrive from birth,
his main disability was behavioural in nature; there seems little doubt that
the diagnosis of autistic spectrum disorder was not made until he was
some three years old. On the face of things, this seems to tear a hole in
Lady Hale’s ‘cut-off at birth’ proposition and the inconsistency was not
addressed in the Parkinson speeches. No doubt the riposte to a questioner
would be that the condition was one which was immanent from concep-
tion but this, apart from threatening a diversion into the interaction of
genetic and environmental factors in the genesis of disease, forces us to
think in terms of when the disability must manifest itself, rather than
when it must arise, in order to impose liability. The stumbling-block, of
course, is that the ‘incubation’ period is open ended depending upon how
many conditions one includes – there is not, for example, an unbridgeable
gap between, autism appearing in infancy, as affected Scott Parkinson,
and psycopathy being evidenced in adolescence. And what, one might
ask, of late onset genetic disease? The condition arises at conception but
the thought of a surgeon finding him or her self liable for special damages
decades after a negligent operation seems too bizarre to entertain – yet it is
one that flows from the award to Mrs Parkinson. Moreover, a woman can
choose whether or not to terminate her pregnancy on the grounds of
possible latent Huntington’s disease in the fetus;36 to what extent, one
may well ask, should this affect the surgeon’s liability under the Parkinson
ruling? I confess that I have no answer to the dilemmas posed and, in the
absence of an appeal of Parkinson, we may have to await the deliberations
of a court hearing a new case which raises these questions specifically in
order to find the solution. The words of Waller LJ in the later case of
Rees37 are, in some ways, prophetic:
Once the court begins to disallow recovery, although normal principles would
allow recovery, and once the court starts to consider the makings of exceptions to
that decision – we are, as I see it, truly in the area of distributive justice.38
Perhaps, then, this is one problem that should be rightly answered by
recourse to the traveller on the London Underground.
There is no doubt that, despite the facts that McFarlane was strictly
concerned with the birth of a healthy child and that Parkinson dealt with
the exception left open by its predecessor – and that, on the surface,

36
Insofar as s.1(1)(d) of the Abortion Act covers only the situation where the child may be
disabled, this is an assumption; nonetheless, there have been no prosecutions for under-
taking what is undoubtedly a frequent occurrence.
37
Rees v. Darlington Memorial Hospital NHS Trust [2003] QB 20, (2002) 65 BMLR 117,
CA. The case is discussed in detail at p. 163.
38
ibid., at QB [45].
162 The troubled pregnancy

Parkinson ‘does no violence to the reasoning’ of the House of Lords39 –
there is no doubt that an antipathy to McFarlane can be discerned in the
speeches of both Brooke and Hale LJJ. The following extract from the
transcript of Proceedings in Cattanach v. Melchior is hard to resist:

GUMMOW J: But there are signs of subsequent rebellion in the Court of Appeal,
are there not, in England?
K I R B Y J : There is rebellion there.
40
G U M M O W J : Parkinson is one example, to put it mildly.


And, as we will see later in this chapter, Parkinson stands as the last
remaining potential port of entry into fortress McFarlane. Leaving aside
the residual problems as to the duration of liability left by Lady Hale, the
speeches are persuasive and resistant to counter-attack. Why, then, are
there still grounds for concern over the case?
The problem lies in the apparent paradox in that virtually everything
said by Hale LJ and much of Brooke LJ’s reasoning can be applied almost
verbatim to the wrongful pregnancy terminating in a normal child.41 The
basic obligations of parenthood are the same irrespective of the health
status of the child. The simple fact is that, the more disabled is the child,
the more difficult and costly it is to fulfil those obligations – but the
additional costs will be always relative, never nil. Henriques J, referring
to the child in Hardman, said:
However, he is disabled and, but for the negligence, the claimant would not have
spent any money bringing up a disabled child.42

Hale LJ makes it quite clear that one could equally say: ‘Catherine was
not disabled yet, but for the negligence, Mr McFarlane would not have
spent any money bringing up a child that he may not have been able to
afford’.
If, then, the effects of unexpected and negligently enforced parenthood
are similar, differing only in degree irrespective of the health of the child,
the logical conclusion is that they should be treated similarly and produce
the same results. In other words, the non-violent parallel relationship
between McFarlane and Parkinson identified by Lady Hale43 is a fiction
and the two cases are, in fact, in direct conflict. This may be due to the


39
See Hale LJ, ibid., at [20].
40
Cattanach v. Melchior, High Court of Australia, Transcript of Proceedings, 11 February
2003. The High Court report is at (2003) 199 ALR 131.
41
And see confirmation of this by Waller LJ in Rees, n. 37 above, at [44].
42
Hardman v. Amin [2000] Lloyd’s Rep Med 498 at 506, (2000) 59 BMLR 58 at 73.
43
n. 39 above.
Uncovenanted pregnancy and disability 163

fact that ‘the court in McFarlane apparently did not see Parkinson com-
ing’44 but, whatever the underlying cause, it means that either McFarlane
or Parkinson is wrong – and we are left wondering which it is to be.
It will have been clear for some time that I am among those who
disapprove McFarlane. To quote Robert Walker LJ,45 ‘there is a strong
moral element in the basis of the decision’ and a majority of the Law
Lords in McFarlane – and, as we will see, all in Rees46 – concurred in
admitting that the decision would have been different had the normal
rules of tort law been applied. Without wishing or intending in any way to
denigrate the ‘moral stance’, it simply seems to me that the tenuous and
adventitious prospects of a ‘blessing’ from the birth of an unsought child
are insufficient grounds on which to overturn well-established and, gen-
erally, successful legal principles; the strength of the reasoning of the
majority in Cattanach seems overwhelming. Nonetheless, McFarlane,
being a House of Lords’ decision, clearly held poll position and was
unlikely to be overtaken except in unusual circumstances. Almost fortu-
itously, such circumstances arose following the authoritative Australian
decision in Cattanach which we have considered and, more importantly,
with the simultaneous appearance on the scene of Ms Rees, to whose case
we can now turn.

The disabled mother
McFarlane was concerned with the single issue of whether damages were
payable in respect of the maintenance of an uncovenanted healthy child
born as a result of professional negligence; it left open, as we have seen,
the possibility that the decision might be different in the event of the child
being disabled. Parkinson also raised only a single issue – that is, the
validity of what I have called the McFarlane exception. Thus, although
the two cases were clearly interrelated, they were not interdependent; the
decision in Parkinson could have gone either way without appearing to
challenge McFarlane – the issues were distinct. Ms Rees’ case was, how-
ever, a different matter. Her history was the familiar one of a wrongful
pregnancy resulting in the birth of a healthy baby, comparable in every
way save one to that of Mrs McFarlane. The exception was that, while
Mrs McFarlane was healthy, Ms Rees was severely disabled due to partial
blindness. Thus, Ms Rees, rather than exploring a lacuna knowingly left
in McFarlane, was seeking to impose a new exception while, at the same
time, preserving the essential element of the case – that is, a healthy baby.

44
Peter Cane, ‘Another Failed Sterilisation’ (2004) 120 Law Quarterly Review 189–93.
45
In Rees, n. 37 above, at [29]. 46 For which see p. 166 below.
164 The troubled pregnancy

Ms Rees, thus threatened to undermine McFarlane at its roots. Moreover,
were she to be successful at appeal, she would force the House of Lords to
review its controversial decision in McFarlane. The result of her case was,
therefore, of fundamental importance.

Ms Rees’s case
Rees v. Darlington Memorial NHS Trust,47 as already explained, concerned
a woman who was severely visually handicapped. On being referred to a
consultant surgeon, she was adamant that she would never want a child
because of the difficulties she would have in caring for it; she also had
problems with contraception. Accordingly, she underwent tubal clipping
in the course of which one tube was inadequately occluded. She gave
birth to a healthy boy some 21 months later.48 Ms Rees then sued for the
full cost of maintenance of her child. The court of first instance, which
is unreported, found, however, that McFarlane had already been suffi-
ciently tested in the ‘wrongful birth’ cases49 and held that no recovery was
available given that the negligence resulted in a healthy child.
The ball was then firmly in the Court of Appeal where, after some
initial confusion, it was agreed that the action was effectively limited to
the recovery of special expenses resulting from Ms Rees’ disability – how
might or might not these be different from those incurred by any parent
faced with rearing an unintended child? Put another way, did McFarlane
mean that none of these costs could ever be claimed in any circumstances
in the case of a healthy child or can that ruling, by analogy with Parkinson,
be modified in the light of the particular circumstances of the individual
case? In the event, the Court was prepared to see the circumstances of
Ms Rees’ case as representing a legitimate extension of the ruling in
Parkinson50 and Lady Hale, who was, again, a member of the panel,
showed no disinclination to renew her challenge.
In many ways, the circumstances in Rees were a gift to Lady Hale who,
as we have seen above, predicated her case on the concept and responsi-
bilities of motherhood. If disability in the child is likely to complicate the
mother/child relationship in both physical and economic terms, disability
in the mother is likely to do so to an equal or even greater extent – and
particularly, perhaps, as to the former. Thus, the pure economist is likely
to say that the costs, both emotional and financial, of rearing a healthy

47
[2003] QB 20, (2002) 65 BMLR 117, CA. For an outstanding review of the Court of
Appeal decision, see, again, Hoyano, n. 22 above.
48
There is no comment as to the offer or refusal of a termination in the case.
49
For which, see Chapter 3. 50 n. 37 above, per Robert Walker LJ at [41].
Uncovenanted pregnancy and disability 165

child are the same irrespective of the mother’s ability to meet them and
there is no need to single out physical disability as one extenuating
circumstance; Lady Hale, however, is able to say that it is a precise reason
why an unwilling mother deserves special consideration. It is worth set-
ting out her actual words at length rather than attempting to paraphrase:
[A]ble bodied parents are both of them able to look after and bring up their child.
No doubt they would both benefit from a nanny or other help in doing so. But they
do not need it in order to be able to discharge the basic parental responsibility of
looking after the child properly and safely, performing those myriad essential but
mundane tasks such as feeding, bathing, clothing, training, supervising, playing
with, reading to and taking to school which every child needs. They do not need it
in order to avoid the risk that the child may have to be taken away to be looked
after by the local social services authority or others, to the detriment of the child as
well as the parent. That is the distinction between an able-bodied parent and a
disabled parent who needs help if she is to be able to discharge the most ordinary
tasks involved in the parental responsibility which has been placed upon her as a
result of the defendant’s negligence.51
Hale LJ recognised the difficulty imposed by having to accept that the
parental benefit of having a child must negative the ordinary costs of
bringing up that child – an aspect of ‘deemed equilibrium’ that is, from
this author’s standpoint, far easier to accept in the case of a healthy child
than in that of one born into the Parkinson scenario; at the same time,
however, she believed that the disabled mother was not being over-
compensated by being recompensed for the exceptional costs involved –
she was merely being put into the same position as her able-bodied
fellows.52
Finally, Lady Hale referred to the problem of the doctor’s assumption
of responsibility and concluded, as this writer has always considered to be
the case, that it is impossible to separate responsibility for the pregnancy
from responsibility for preventing parenthood and the parental responsi-
bility that brings – ‘the two go hand in hand just as pregnancy and child-
birth go hand in hand’.53 I have to say that I regard this as an important
indicator of the relationship between McFarlane, Parkinson and Rees.
Firstly, if it applies to Rees, it should, in logic, apply to the birth of a
healthy child irrespective of the health of the mother – and, by implica-
tion, it should also involve responsibility for the ordinary costs; while

51
ibid., at [22]. Rather surprisingly, Hoyano, n. 22 above, finds this passage unacceptable
insofar as it forces the parents of healthy children born following a failed sterilisation to
depict themselves as inadequate parents incapable of ensuring the child is looked after
properly if they are to win exemption from the McFarlane rule. For my part, it seems to do
no more than recognise the de facto situation.
52
ibid., at [23]. 53 ibid., at [24].
166 The troubled pregnancy

admitting that it probably represents no more than a lost cause, I will
return to this briefly when discussing Rees in the House of Lords. More
importantly, I see it as providing a significant distinction between
Parkinson and Rees. In the latter case, the surgeon knows he or she is
treating a disabled mother; in doing so, he or she is clearly accepting a
special responsibility. By contrast, there is no way by which a sterilising
surgeon can know that his or her negligence will lead to the birth of a
disabled child – and, as has been argued above at p. 155, it is difficult to
accept that such an outcome must even be anticipated. For this reason
alone – and there are others – it is illogical to regard Rees as no more than a
gloss on – or a legitimate extension of 54 – Parkinson; the conditions in
each are different and the cases are different. There is no reason to assume
that special damages should be available in one simply because compensa-
tion has been admitted in the other. On the other hand, once one accepts
this view of the doctor’s responsibilities, there is little reason to cavil at
Robert Walker LJ’s support for Hale LJ on the grounds that there is
‘nothing unfair, unjust, unreasonable, unacceptable or morally repug-
nant in permitting recovery of compensation for a limited range of
expenses which . . . have a very close connection with the mother’s visual
impairment’.55
Waller LJ’s dissent was, however, powerfully argued and was widely
quoted later in the House of Lords. He emphasised the dangers of under-
mining the McFarlane rule concerning a healthy child and gave a number
of reasons why it might be unfair to the healthy mother whose social well-
being might be equally affected by unwanted parenthood.56 Even so, the
Court of Appeal held, by a majority, that Ms Rees was entitled to recover
the extra costs in bringing up a child that were imposed by her condi-
tion.57 The Health Trust appealed the decision and, thereby, introduced
a direct attack on the McFarlane decision; the stage was, thus, set for a
major confrontation in the House of Lords.

Rees in the House of Lords
It was always apparent that Rees v. Darlington Memorial Hospital NHS
Trust58 was likely to be argued as something of a hybrid case. Looked at

54
As per Robert Walker LJ, ibid., at [41]. 55 ibid., at [37].
56
ibid., at [55]. To which Robert Walker LJ replied that these provided no reason for not
making the attempt to assess the individual case.
57
But it is to be noted that the nature of the excess costs was never properly explored.
58
[2004] AC 309, [2003] 4 All ER 987. Again, I have written previously at some length on
this case in J. K. Mason, ‘From Dundee to Darlington: An End to the McFarlane Line?’
[2004] Juridical Review 365–386 and this forms the basis for the discussion that follows.
Uncovenanted pregnancy and disability 167

from one angle, it was a straightforward appeal from the decision of the
Court of Appeal. At the same time, the confrontational nature of the case
and the composition of the Committee as a seven-judge bench particu-
larly invited the House to step back and reconsider its own decision in
McFarlane. The decision rested on a bare 4 to 3 majority and, as might be
expected, the reasons underlying the opinions again varied markedly and
the case opened up a number of innovative variations on tort law. In its
way, the whole legal panorama of ‘the troubled pregnancy’ supports the
recent cri de coeur from Australia: ‘The time may have come when the
traditional individuality of the English (and Australian) final–appellate
judge should give way to a more collegial style of opinion-writing deigned
to produce an agreed majority position on the main points in a case.’59
Meantime, faced with seven disparate opinions, we must settle into the
role of Snow White as best we can.

The scope of the appeal. The fundamental issue before the House
appears in full in Lord Steyn’s speech at [26]:
In the light of the decision of the House of Lords in McFarlane v. Tayside Health
Board [2000] AC 59, where a person who suffers from a physical disability
undergoes a negligently performed sterilisation operation, conceives, gives birth
to a healthy child and, as a consequence of the birth of the child incurs:
(a) costs of bringing up the healthy child which would be incurred by a healthy
parent; and
(b) additional costs of bringing up the healthy child which would not be incurred
by a healthy parent and which are incurred because of the particular parent’s
disability;
which of those costs of bringing up the healthy child (if any) may be recovered by
the parent in an action in negligence brought against the person responsible for
the performance of the sterilisation.

On this basis, the main concern of the House was to ratify, or reverse, the
findings of the Court of Appeal in Rees60 and this was to be done while
bearing the McFarlane decision in mind. The formulation contains no
inherent threat to McFarlane – rather, the conditions of that case are
impliedly accepted. The answer to a relatively straightforward question
does not, however, justify a seven-judge bench and the Presiding Judge,
Lord Bingham, summarised the practical situation as:
The appellant NHS trust now challenges that decision [in the Court of Appeal] as
inconsistent with McFarlane. The claimant seeks to uphold the decision, but also



59 60
Cane, n. 44 above. n. 47 above.
168 The troubled pregnancy

claims the whole cost of bringing up the child, inviting the House to reconsider its
decision in McFarlane.61
Thus, on both counts, the emphasis has shifted and the case has, simul-
taneously, become an appeal to and about McFarlane. Even so, in the
event, the claimants opted to revert to the fons et origo of the problem and
to base their case on a challenge to the decision in McFarlane itself.

Should McFarlane be reconsidered? It is a consistent feature of
the appeal that, despite being equipped, able62 and invited to do so, the
House effectively refused to reappraise their decision in McFarlane.
The leading statement is that of Lord Bingham who said (at [7]):
I am of the clear opinion . . . that it would be wholly contrary to the practice of the
House to disturb its unanimous decision in McFarlane given as recently as 4 years
ago, even if a differently constituted committee were to conclude that a different
solution should have been adopted. It would reflect no credit on the administra-
tion of the law if a line of English authority were to be disapproved in 1999 and
reinstated in 2003 with no reason for the change beyond a change in the balance of
judicial opinion.
Lord Millett63 quoted Lord Wilberforce, with approval, as having said: ‘it
requires much more than doubts as to the correctness of the previous
decision to justify departing from it’64 and he considered that the estab-
lished criteria for so doing were nowhere near satisfied in McFarlane.
Among the ultimate minority, Lord Steyn, while accepting that it could
be done, quoted similarly powerful authority to the effect that it would be
highly undesirable if litigants could return to the House ‘in the hope that a
differently constituted committee might be persuaded to take the view
which its predecessors rejected’.65 Thus, the facts that the decision was
controversial and that the individual decisions in McFarlane were based
on different premises are immaterial.
An interesting feature of the discussion is that the precedents quoted66
involved intervals of eleven years – in effect, McFarlane, covering a matter
of four years, never stood a chance and one can easily empathise with their
Lordships’ anxiety not to indulge in see-saw lawmaking. At the same

61
n. 58 above, at AC [1]. This seems to have changed at some point in the proceedings as
Lord Steyn remarks that the case for the claimant at the hearing was restricted to seeking
to recover the extra costs resulting from Ms Rees’ disability (at [26]).
62
Practice Statement (Judicial Precedent) [1966] 1 WLR 1234. And see R v. Shivpuri [1986]
2 WLR 988.
63
n. 58 above, at AC [102].
64
In Fitzleet Estates Ltd v. Cherry [1997] 3 All ER 996 at 999, [1977] 1 WLR 1345 at 1349.
65
n. 58 above, at AC [32].
66
Including R v. Knuller (Publishing, Printing and Promotions) Ltd [1973] AC 435.
Uncovenanted pregnancy and disability 169

time, the man in the street might well think that, if something is wrong,
the sooner it is put right, the better. No-one could, or should, legitimately
attempt to tell the House of Lords how to run its business but one can still
wonder about it – and, like it or not, there is a whiff of obduracy in some of
the statements. ‘The most that can be said’, said Lord Millett, ‘is that the
decision was controversial’, which is not a very satisfactory reason for
avoiding further controversy. And if ‘a change in the balance of judicial
opinion’ is an insufficient ground on which to alter judge-made law, then,
again, the supposed arbiter of distributive justice is entitled to ask what is
sufficient? Supposing, then, that the precedental hurdles had not been
insurmountable,67 what might have been the result? For once, the House
of Lords left us in no doubt – at least six of the seven judges confirmed
their agreement with the McFarlane decision as it stands.
Lord Bingham (at [7]) would not be persuaded that the policy consi-
derations which he thought drove the decision had lost their potency.
Lord Nicholls (at [16]) had heard nothing in the submissions advanced to
persuade him that McFarlane was wrong. Lord Steyn (at [33]), while
accepting that the decision represented a least bad choice, thought it to be
sound. Lord Scott (at [143]) posited, with good reason, that the majority
in the Court of Appeal in Rees thought that the decision in McFarlane was
wrong but, nevertheless, thought, himself, that that case was correctly
decided. Lord Hope (at [50]), while agreeing that the House should not
depart from that decision, added: ‘even if some of your Lordships had
been persuaded that they would have decided the case differently’.
Neither Lord Hutton (at [86]) nor Lord Millett (at [103]) would have
departed from the unanimous decision of the House in McFarlane even if,
after further reflection, they had thought it was wrong.
Thus, the greater part of the claimants’ case in Rees – that is, the
challenge to the McFarlane decision – was stillborn. We need, therefore,
only consider the alternative question – is the Court of Appeal decision in
Rees compatible with that of the House of Lords in McFarlane?

McFarlane, Parkinson and Rees in perspective
The agreed remit in Rees, as we have seen, made no reference to
Parkinson.68 Yet it is clear that that case could not be avoided. As Lord
Steyn emphasised (at [27]), Parkinson, in deciding that a case involving

67
And Lord Steyn quoted Miliangos v. George Frank (Textiles) Ltd [1976] AC 443 as
admitting the possibility.
68
Indeed, both Lord Millett (at [112]) and Lord Scott (at [145]) specifically noted that
Parkinson is not involved in the Appeal. Lord Millett ‘would wish to keep the point open’.
170 The troubled pregnancy

the birth of a disabled child falls outside the principle laid down in
McFarlane, has some bearing on the ultimate decision in Rees even if it
is relevant only by way of analogy.
Lord Millett (at [101]) posed the question even more clearly: are the
conditions surrounding Rees to be seen as a legitimate and natural exten-
sion of Parkinson or is Rees governed by the overriding principle estab-
lished in McFarlane? We cannot know the answer to this without looking
back and asking whether the division of wrongful pregnancy cases on the
grounds of neonatal disability that was envisaged by Lords Steyn and
Clyde in McFarlane was theoretical or real. Unfortunately, since
Parkinson, which alone poses that basic question in relatively uncompli-
cated fashion, has not been argued in the House of Lords, we can only
theorise as to the answer.
Any analysis of the relationship must begin with the cornerstone fact
that McFarlane dealt with a wrongful pregnancy resulting in the birth of a
healthy child; although the question was not considered, the coincidence
of healthy parents must either be assumed or regarded as irrelevant to the
ultimate decision. Parkinson, in being concerned with a disabled child,
deals with an alternative scenario that is quite distinct from that sur-
rounding McFarlane. In genealogical terms, it is a sibling of McFarlane
rather than a descendant – and, this being so, it is perfectly appropriate to
accept the two decisions as being compatible. Rees, however, is a new
variant which was not envisaged in McFarlane. Thus, its place in the
hierarchy remains to be determined.
The view of the Court of Appeal, typified in the judgment of Robert
Walker LJ,69 appears, by analogy, to be that Rees and Parkinson both
accept that disability on either side of the parent/child relationship dis-
tinguishes them from McFarlane to an equal extent. To accept one is to
accept the other – if Parkinson was right, then the same principles apply to
Rees.70 The alternative view was, however, well expressed by Lord Millett
in the House of Lords. He identified the central issue as being the health
of the child – in which case, McFarlane and Rees, as has been suggested
above, are on a par. As he put it: ‘the decision of the Court of Appeal in
the present case is not a legitimate extension of Parkinson, but an illegit-
imate gloss on McFarlane’ (at [113]). In other words, the Court of Appeal
ruling in Rees is, prima facie, incompatible with McFarlane and, so long as


69
n. 47 above, at [41].
70
This reaches the same conclusion but is based on a slightly different premise from that of
Hale LJ who depended on her ‘deemed equilibrium’ between the advantages and dis-
advantages of ‘normal’ parenthood – anything that upsets that equilibrium represents a
deviation from McFarlane (see Rees, n. 37 above, at [23]).
Uncovenanted pregnancy and disability 171

the latter cannot be overturned, the appeal to the Lords in Rees must
succeed.
Speaking from the minority in the House of Lords, Lord Steyn also
accepted that the health of the child is central to McFarlane and, accord-
ingly, distinguished Parkinson as standing alone. When it came to Rees,
however, he conceded that holding the health of the mother to be a
significant factor in the award of damages creates serious difficulties –
in particular, that of arbitrariness. It was, said His Lordship, ‘unrealistic
to say that there is only one right answer’ to Rees and, at the same time, it
was ‘logically not straightforward to treat Rees as simply an extension of
Parkinson’ (at [39]) – a view with which, as has become apparent, this
writer is in entire agreement. His alternative reason for following the
Court of Appeal is, however, less satisfying. To say: ‘I am persuaded
that the injustice of denying to such a seriously disabled mother the
limited remedy of the extra costs caused by her disability outweighs the
considerations emphasised by Waller LJ’ seems a rather negative way of
making a positive decision.71 In offering specific approval to Robert
Walker LJ,72 he may well be introducing a new head of argument – that
is, the importance of the developing law on disability and the need to
ensure compatibility between the statutory and judicial approaches in this
field. This aspect of the case was particularly emphasised by Lord Hope
(at [63]–[69]) who pointed out that the aim of anti-discrimination law
was to provide ‘civil rights for disabled people whose impairment affects
their ability to carry out normal day-to-day activities’. This might provide
a wholly different route by which to distinguish Rees as a distinct, free-
standing entity and is one which has much to commend it.73 Even so, it is
not easy to see why the particular tortfeasor under consideration should
be held liable to implement government policy; for this, Lord Hope’s
reference to the surgeon’s prior knowledge (at [63]), and which has been
discussed already at p. 166 above, is greatly to be preferred.
Lord Hutton (at [98]), however, again speaking from the minority,
approached the problem from the opposing viewpoint. He recognised
that, as agreed by all members of the Committee, Mrs McFarlane would
have been entitled to damages under the normal rules of tort law;
McFarlane was, therefore, the exception and, in his view, it was possible
to say that the exception would not apply when either the mother or the


71
It does, of course, crystallise the reason why I, with all due deference, am at loggerheads
with their Lordships in general. At the risk of being repetitive, I see the basic injustice,
from which all the later problems spring, as being the denial of maintenance costs to Mr
and Mrs McFarlane.
72
n. 47 above, at [41]. 73 Despite Hoyano’s very firm rejection noted in n. 51 above.
172 The troubled pregnancy

child was disabled. This is a neat debating point but it does little to justify
the Court of Appeal in either Parkinson or Rees. Effectively, it seems to be
saying no more than that, if McFarlane is immutable, then let us isolate it
in whatever way we can so that its wayward effect on the law of tort can be
limited. McFarlane would, then, exonerate the negligent practitioner only
on its own strict terms and, that being the case, his or her responsibility for
reparation is restored when those terms are varied – in the present con-
text, either, and equally, on the physical or mental state of the mother or
those of the neonate.74
The differences of opinion expressed have significant repercussions in
respect of liability and it is important to bear in mind that both McFarlane
and Parkinson are cases of wrongful pregnancy. For all practical purposes,
there was no reason to suppose that Mrs Parkinson’s baby would be
disabled – the matter, it seems, was discussed only in general terms. It
follows that the professional responsibility in terms of outcome is the same
in each case. Ms Rees was, however, known to be disabled and it is
suggested that, because of this, the duty of care is that much more compel-
ling in her case than in that of either Mrs McFarlane or Mrs Parkinson.75
It could, of course, be said that the duty to accomplish a sterilisation with
due care is the same in any event76 and, to that extent, the discussion may
be considered sterile – it certainly does little to lessen the jurisprudential
confusion which is the legacy of Rees.77
One positive result of the decision in Rees, however, is to clarify the
distinction between the wrongful pregnancy case resulting in a disabled
neonate and the wrongful birth action which has the same result. As Lord
Bingham pointed out (at [9(1)]), the doctor did not cause the disability in
either Ms Rees’ or Mrs Parkinson’s case;78 it is, therefore, anomalous that
he or she should be responsible for the rearing costs in excess of those

74
I have to admit that this assessment probably exceeds Lord Hutton’s true intentions.
75
Lord Hope (n. 58 above, at AC [63]) thought, on balance, that the fact that the parent
was seriously disabled provided grounds for distinguishing McFarlane and that it would
be right to hold that ‘such extra costs as can be attributed to the disability are within the
tortfeasor’s duty of care and are recoverable’. Cf. Lord Millett (ibid., at [120]) – the
mother’s disability is not the responsibility of the defendants at all.
76
See, for example, Nicky Priaulx, ‘Parental Disability and Wrongful Conception’ [2003]
Family Law 117–20.
77
Lord Millett (n. 58 above at AC [116]) points to a somewhat contrary circumstance –
that, while the disadvantages of a child’s disability persist throughout childhood, the
disadvantages of a healthy child to a disabled mother diminish as the child matures. This
view was challenged in a review of the case by S. Singer,‘Rees v. Darlington Memorial
Hospital NHS Trust [2004] 1 AC 309’ [2004] 26 Journal of Social Welfare and Family Law
403–15.
78
An idea of the complex interplay of the three cases is given by Lord Bingham’s reference
to Parkinson at this point.
Uncovenanted pregnancy and disability 173

available in the case of a healthy child. Or, to quote from Lord Scott in
similar vein:
In a case where the parents have had no particular reason to fear that, if a child is
born to them, it will suffer from a disability, I do not think there is any sufficient
basis for treating the expenses occasioned by the disability as falling outside the
principles underlying McFarlane.79

The same does not apply in the wrongful birth case where the negligent
genetic counsellor, using the term in its widest sense, is directly respon-
sible for the existence of a disabled child. It follows that the decisions in
cases such as those of Rand and Hardman80 are unaffected by Rees.
In summarising this section, it is fair to say that, closely related though
they are both conceptually and temporally, there is no logical continuum
to be discerned between McFarlane, Parkinson and Rees.81 In the end, the
conclusion is forced that the three cases are close but distinct, despite
sharing a common origin – that is, the union of a sterilisation operation
and professional negligence. The concept of a McFarlane line, such as
I have tried to develop, is illusory and the ultimate decision in Rees, as
expressed both by the majority and minority, supports this view.82


Deconstructing the decision in Rees
The definitive decision of the House of Lords in Rees, taken by a majority
of 4 to 3, was to allow the appeal of the NHS Trust against the award of
expenses to a disabled mother over and above those which would be
incurred by a healthy mother for the upkeep of a child born as the result
of a negligent sterilisation operation. The ramifications of the appeal
were, however, widespread and it is unsurprising that the greater part of
the opinions was directed to the collateral issues which have been dis-
cussed above. When it came to the basic question, however, the speeches
were quite succinct – despite being, inevitably, open to argument.

The majority opinion. Lord Bingham (at [9]) gave three reasons
for allowing the appeal. First, the rule established in the Court of Appeal


79
n. 58 above, at AC [145]. 80 For which, see Chapter 3.
81
Ben Golder, ‘From McFarlane to Melchior and beyond: Love, Sex, Money and
Commodification in the Anglo-Australian Law of Torts’ (2004) 12 Torts Law Journal
128 found a tenuous progression and, as a result, categorised the UK jurisprudence on
the subject as revealing ‘both a doctrinal incertitude and a political vacillation’ (at 139).
82
As Lord Steyn put it (n. 58 above, at AC [37]), an award of damages in Rees is only
possible if an exception to McFarlane is created – ‘it is logically not straightforward to
treat [Rees] as simply an extension of Parkinson’s case’ (ibid., at [39]).
174 The troubled pregnancy

would lead to anomalies such as were highlighted by Waller LJ in his
dissenting opinion and, in this, Lord Bingham was supported by Lord
Nicholls (at [18]). But, as Lord Hutton said (at [96]), such difficulties
should not deter the Court from coming to a decision. Second, it is
undesirable that parents, in order to recover compensation, should be
encouraged to portray either their children or themselves as disabled – but
this cannot be avoided when the description is a matter of obvious fact.
And, third, the quantification of additional costs attributable to disability
is a task of acute difficulty in a state with a strong social services tradition –
but, again, that is scarcely a satisfying reason for not trying.83
Lord Millett also emphasised the difficulty of assessing the costs of
bringing up a child but recalled that they were not recoverable on
McFarlane principles even though they were reasonably attributable. In
principle, he held, the same must be true of the disabled parent (at [114]) –
the distinction of what costs are reasonable ‘cannot be drawn on the line
which distinguishes the disabled parent from the normal, healthy one’ (at
[115]). Lord Scott also reverted to McFarlane – all the features in that
case that justified creating an exception from the normal principles of tort
law were present in Rees (at [142]). To follow the Court of Appeal was to
accept an exception to McFarlane and ‘an exception to an exception is apt
to produce messy jurisprudence’ (at [143]). Such views are hard to refute
once it is accepted that it is the presence of a normal baby – and only the
presence of a normal baby – that defines what is an unreasonable head of
damages on which to found a claim for wrongful pregnancy.

The minority case. Lord Steyn, who also specifically approved the
Parkinson decision on the grounds of corrective justice,84 dismissed the
appeal but he seemed unhappy with the evidence on which he had to base
his decision. Ultimately (at [39]), his case rested on the injustice of deny-
ing a limited remedy to a seriously disabled mother rather than on the
justice of providing a remedy for the victim of medical negligence – and
this is probably the only line available once McFarlane is regarded as
written in stone.
Lord Hope, having agreed with Parkinson on the grounds that the extra
costs involved in the rearing of a disabled child were recoverable as a
matter of legal policy, concluded, on balance, that the fact that a child’s

83
‘Viewing the decision of the two House of Lords cases from the perspective of the law on
child maintenance reinforces the conclusion . . . that assessing the cost of having children
and dividing the cost of upbringing from financial provision can be a normal uncon-
troversial legal exercise’: Singer, n. 77 above.
84
But this depended upon the case being recognisably distinct from McFarlane – i.e. that
the exception dictated by a healthy child did not apply.
Uncovenanted pregnancy and disability 175

parent is seriously disabled also provides a ground for distinguishing
McFarlane and that it is fair, just and reasonable to hold that such extra
costs are within the scope of the tortfeasor’s liability (at [63]). Lord Hope
admitted his difficulty in reaching this conclusion. He explained, how-
ever, that it was the inescapable fact of her disability which distinguished
the seriously disabled parent from those who were disadvantaged by way
of lifestyle or to other social conditions which were beyond their control.
He also argued, convincingly, that, by allowing the seriously disabled
parent to recover the extra costs of child rearing which were due to her
disability, the law would be doing its best to enable her to undertake the
task on equal terms with those who were not affected by impairment –
that is, it would be actively supporting an anti-discrimination policy (at
[68]). Lord Hutton followed almost identical reasoning and, having
agreed that Parkinson was correctly decided on the basis of the Caparo
test, had no difficulty in transferring this reasoning to Rees. As has been
already remarked, he concluded that the exception to the normal rules of
tort law created by McFarlane does not apply when either the child or its
mother is disabled (at [98]).
The approaches of both the majority and minority in Rees give rise to
some dissatisfaction insofar as, at base, they are founded on negative
approaches. The former are concerned to say why Ms Rees should not
succeed; the main thrust of the minority lies in showing that McFarlane is
not undermined. I suggest that part of the difficulty lies in the judicial
concentration on the costs involved in both cases. The woman concerned
in all the relevant cases has, however, already been awarded damages
related to the pain, suffering and discomfort associated with pregnancy and
childbirth. Could this not be extended in the case of the disabled mother
to include the added suffering associated with childcare that is imposed
by reason of her disability? Taking this route absolves us from quantifying
the value of a child and focuses positively on the one factor that distin-
guishes Ms Rees from Mrs McFarlane. The latter is subjected to the trials
of normal motherhood; the former carries out her duties in conditions of
added discomfort and, perhaps, pain – moreover, as already intimated, it
is additional discomfort and pain that is clearly foreseeable by he or she who
is responsible for the pregnancy. This approach does not seem to have
been considered in any of the arguments advanced but it is not so far
fetched as might appear. It is not difficult to combine the views of Hale LJ
in the Court of Appeal85 with those of Lord Hope in the House of Lords86
and to conclude that both appear to be at least toying with the concept of


85 86
n. 47 above, at QB [22]. n. 58 above, at AC [65].
176 The troubled pregnancy

injury to the mother. It seems a pity that that route – which, by concen-
trating on the mother, loosens the straitjacketing circumstance of the
normal child87 – was not explored further.

The conscience of the Lords
Lord Millett’s original and lone plea that Mr and Mrs McFarlane should
not be sent away empty-handed88 received scant notice when he pro-
posed it. There is little doubt, however, that, by the time Rees was heard,
the mood of the House had changed and the tone of the opinions deliv-
ered on both sides in the latter case strongly suggests that their Lordships
nurtured a general concern that justice was, at least, not being seen to
be done under the pure McFarlane rule. This was epitomised by Lord
Nicholls (at [17]):
An award of some amount should be made to recognise that in respect of the birth
of the child the parent has suffered a legal wrong, a legal wrong having a far-
reaching effect on the lives of the parent and any family she may already have.

And the answer lay with Lord Bingham who, in the leading speech for the
majority, proposed that: ‘in all cases such as these there be a conventional
award to mark the injury and loss’.
This ‘conventional award’ provides possibly the most complex and
controversial aspect of the Rees judgment – indeed, it is hard to find a
commentator who does not, at this point, start to scratch his or her head.
This is not because of any disapproval of some form of recompense for
a woman who has been wronged – far from it, although we will return to
the particular position of Mrs Parkinson below. The interest lies, rather,
in the manner of its bestowal and its consequent effects on the existing –
and future89 – jurisprudence. The award was approved by four of their
Lordships but Lord Bingham’s opinion provides us with the reasoning
that justifies it.
Lord Bingham very clearly had doubts as to the fairness of a rule which
denies the victim of a wrongful pregnancy any recompense at all beyond
that designed to compensate for the immediate effects of pregnancy and


87
And also avoids perpetuating ‘pathologising assumptions about the effects of parental
disability on children’ – Nicky Priaulx, ‘That’s One Heck of an ‘‘Unruly Horse’’! Riding
Roughshod over Autonomy in Wrongful Conception’ (2004) 12 Feminist Legal Studies
317–31. See also the objections of Hayano, n. 51 above.
88
McFarlane v. Tayside Health Board [2000] 2 AC 59 at 114, 2000 SC 1 at 44.
89
Singer, n. 77 above, remarks: ‘Rees has provided an interesting precedent for judges to
avoid the strict application of the principles they expound by creating novel remedies to
detract attention from obvious injustices’ (at 414).
Uncovenanted pregnancy and disability 177

birth – that part of the claim identified as ‘the mother’s claim’ in
McFarlane.90 Accordingly, he proposed an award of ÂŁ15,000 to all
women who are the victims of a wrongful pregnancy irrespective of
whether the parent or the child is healthy or unhealthy or claims to be
unhealthy; he would award this over and above that authorised in settle-
ment of the ‘mother’s claim’ (at [8]).91 Two conjoined questions arise –
what were his reasons for such a surprise recommendation and what did
he intend it to achieve? As Cane has said, its adoption by the House could,
not unreasonably, be seen as a result of no more than ‘a change in the
balance of judicial opinion’.92
There are, indeed, some aspects of his Lordship’s speech which give
rise to more that a little analytical concern. The proposal was justified, for
example, on the grounds that:
The members of the House who gave judgment in McFarlane recognised [that
wrong had been done] by holding, in each case, that some awards should be made
to Mrs McFarlane (although Lord Millett based this on a ground which differed
from that of the other members and he would have made a joint award to Mr and
Mrs McFarlane).

This is difficult to reconcile with what was actually said in McFarlane
where the House agreed93 that only ‘the mother’s claim’ for the pain and
suffering of pregnancy and childbirth should succeed. Lord Millett’s
proposal for an award of ÂŁ5,000 was made independently and was con-
tingent upon there being no other recognition of the wrong done to the
claimants.94 Lord Bingham’s proposal, being additional to the mother’s
claim, is, therefore, distinct from that originally outlined by Lord Millett;
as a result, and as it is to be allowed across the whole spectrum of wrongful
pregnancy cases, it appears to modify the McFarlane ruling significantly –
as Priaulx puts it: ‘Quite simply, McFarlane no longer stands as good law
in the light of Rees.’95
There is considerable force behind this comment. Lords Bingham and
Nicholls spoke of it being a gloss on the ruling, but surely it is more than


90
Which does, of course, mirror the feelings of all those who disagreed with the McFarlane
decision – including, it has to be said, the majority in the High Court of Australia in
Cattanach, discussed in detail in the preceding chapter.
91
Cane, n. 44 above, regarded it as ‘most unfortunate’ that Lord Bingham did not define
‘all cases such as these’ (at 190).
92
n. 44 above at 190 quoting Lord Bingham himself at [7].
93
n. 88 above, Lord Millett dissenting on logical grounds at AC 114, SC 44.
94
ibid., at AC 114, SC 45.
95
n. 87 above at 327. It is to be noted that Priaulx, and feminist writers in general, find little
or no satisfaction in the award as recognition of the interference with the woman’s
autonomy – largely on the grounds that it generalises a situation that is intensely personal.
178 The troubled pregnancy

that? At the very least, it looks like silver-plating; to quote Lord Steyn,
‘it is a radical and most important development which should only be
embarked on after rigorous examination of competing arguments’.96
What, then, were their Lordships’ individual justifications of and objec-
tions to the award?
Lord Bingham (at [8]) spoke of a recognition of harm done but defined
that in negative terms. ‘The conventional award would not be compen-
satory’, he said. ‘It would not be the product of calculation. But it would
not be a nominal, let alone a derisory award.’ It affords ‘a more ample
measure of justice than the pure McFarlane rule’ – and, significantly, the
implication is that Lord Bingham would make the award to the mother
rather than to the parents, thus, perhaps, supporting the concept of con-
tinuing personal injury that I have suggested at p. 175. Lord Nicholls
(at [18]) regarded it as a way of avoiding a means-tested analysis of the
injury done – and, thereby, impliedly, accepted it as a form of compen-
sation. Lord Millett (at [123]) followed much the same line in awarding
the parents ‘a modest conventional sum by way of general damages’.
He reminded us that his original proposal in McFarlane was not conceived
as an alternative to the mother’s claim – he would have made his award
to both parents; and, insofar as the matter was not discussed in the
course of McFarlane, he believed that this could still be done without
prejudice to that decision. Lord Scott (at [148]) went the furthest of the
majority and regarded the award as compensation for lack of due care
in performing the operation; it was open to the court to put a monetary
value on the deprivation of a benefit the woman expected – that is, her
sterility.
In the light of all of which, one cannot but help feel that Lord Hope (at
[74]) was justified in being disturbed at ‘the lack of any consistent or
coherent ratio in support of the proposition’. Lord Hope also pursued the
negative line in pointing out that the award is in no sense punitive and, at
this point, it seems that we are running out of possible purposive options.
An immediate emotional reaction is to see the award as a form of con-
science money or as a charity designed to offset the sense of injustice left
by the original McFarlane decision. To do this, however, is to risk relegat-
ing the decision to what Lord Steyn suggested might be ‘a backdoor
evasion of the legal policy enunciated in McFarlane’ (at [46]) without
adequate consideration of what was the form of the wrong that Lord
Bingham recognised as needing to be righted.



96
See also Lord Hope (n. 58 above, at AC [74]).
Uncovenanted pregnancy and disability 179

Lord Bingham, himself, saw the mother as having been denied,
through the negligence of another, the opportunity to live her life in the
way that ‘she had wished and planned’.97 This implies a long-term ‘detri-
ment’ and one is reminded of Hale LJ’s vivid description of motherhood
in Parkinson.98 Lord Millett, by contrast, saw the wrong as a denial of the
parents’ right to limit the size of their family (at [123]) but, since he then
went on to concur with Lord Bingham, any distinction that is made
between the two approaches may be one without a practical difference.99
Not unexpectedly, the validity of the award was directly questioned,
especially by Lord Steyn (at [45]) who felt strongly that there is no United
Kingdom authority that provides the courts with power to make such an
award; he went so far as to suggest that, to do so, is to stray into forbidden
territory – territory that is strictly within the fiefdom of Parliament. At
the same time, none of the Law Lords in Rees opposed the understanding
that, given an orthodox application of the law of tort, persons in the
position of Mrs McFarlane or Ms Rees would be allowed full damages
against the tortfeasor for the cost of rearing the unsolicited child. However
one likes to look at it, in the end, the McFarlane decision removes this
right on the grounds of legal policy. Any conflict between a legal right and
legal policy is normally settled at the stage of recognition of that right. In
McFarlane, it is being resolved at the stage of quantification of compen-
sation for breach of a right – which is a new departure. The majority of the
House, however, then decided that the fact that Ms Rees was disabled
could not, of itself, justify making an exception to McFarlane in hers and
similar cases. They were, thus, on the horns of a self-made dilemma – and
this must be the anomaly that the House was anxious to set aside.
Consequently, by far the most important feature of Rees lies in the
introduction of the concept of a wrong comprised of an affront to
autonomy – whether this be that of one or both of the principals.100
This derives from insult to that element of personal autonomy which is
vested in freedom of choice. We can, then, revert to Lord Bingham and
view the award as no more than a form of recognition of a wrong having
been done for which there is no other appropriate form of reparation.101


97
It is to be remembered that the claimant in this case was a single mother. It is not
absolutely clear whether, in other circumstances, the award would go the parents.
98
n. 10 above at [63]–[71]. This raises some misgivings as to whether £15,000 constitutes
a suitable recognition.
99
Priaulx, n. 87 above, at 326 is particularly critical of Lord Millett’s attempt to dissociate
the effects of the birth of a child from the right to limit one’s family.
100
It was also introduced by Hale LJ, n. 10 above, at [66].
101
The House of Lords is clearly moving towards this line of reasoning. A similar
‘autonomy’ position was adopted in Chester v. Afshar [2005] 1 AC 134, [2004] 4 All
180 The troubled pregnancy

But one still as to ask if this goes sufficiently far to lead to the conclusion
that justice has been done. Granted that a wrong has been done, surely
there ought to be a remedy and, indeed, Lord Millett believed that,
whether one regards the opportunity to exercise one’s autonomy as a
right or as a freedom, its loss is a proper subject for compensation by way
of damages (at [123]). In this writer’s view, the scene would be trans-
formed were such a new head of damages to be admitted. It would allow
us to visualise the award in terms of compensation;102 should it be
necessary, we could return to McFarlane freed of any ‘sense of distaste
or moral repugnance’;103 and, because the basis of any such action would
be the same, the courts would be able to treat every variation on the
wrongful pregnancy theme on its factual merits.104
Whether a fixed sum in the form of a ‘conventional award’ represents
an adequate way of compensating for a variable injury is, however, still
open to doubt.105 Lord Millett might be right in saying that a modest
award would adequately compensate for the injury to the parents’
autonomy but he might not be. A figure of ÂŁ15,000 was, at best, one
which Lord Bingham ‘had in mind’ and it is more than likely that most
people would share Lord Hope’s doubts (at [77]) as to its universal
application.106 Lord Bingham leaves some other questions hanging in
the air. For example, does the quantum attract the semi-permanency of
other House of Lords’ decisions? Can it be index-linked? In any event, is
there any viable alternative or modification available?
An interesting consequence of recognising infringement of autonomy
is that the House of Lords, at least as represented by Lords Bingham,
Nicholls and Millett, is coming very close to the Scottish concept of
damnum which we have already considered in Chapter 3. The injuria in

ER 587 which has been discussed in Chapter 3: ‘Her right of autonomy and dignity can
and ought to be vindicated by a narrow and modest departure from traditional causation
principles’ (per Lord Steyn, ibid., at AC [24]).
102
Which is where Lord Scott, at least, thought it rightly lay (n. 58 above, at AC [148]).
103
The words of Lord Millett (ibid., at [125]).
104
For further discussion of autonomy – and on many aspects of ‘the troubled pregnancy’
see Stephen Todd, ‘Wrongful Conception, Wrongful Birth and Wrongful Life’ (2005)
27 Sydney Law Review 525–42.
105
‘The conventional approach not only risks ‘‘pleasing no one’’, but if applied across the
board to include cases of disabled children, will only further entrench the manifest
unfairness that results from it’s application’: Nicolette M. Priaulx, ‘Damages for the
‘‘Unwanted’’ Child: Time for a Rethink?’ (2005) 73 Medico-Legal Journal 152–63.
Priaulx also draws attention to the gender discriminatory attitude to reproductive
autonomy that is inherent in the House of Lords’ decisions. See also Golder, n. 81
above, for exposition of the feminist criticism.
106
I fancy that a majority would agree with Singer, n. 77 above: ‘At best, the figure of
ÂŁ15,000 for loss of reproductive and personal autonomy is nominal and, at worst, it is an
affront to the female role of child-bearing.’
Uncovenanted pregnancy and disability 181

a case of wrongful pregnancy is either the negligent performance of the
operation or the negligent provision of information; the concurrence of
this with damnum – that is, the prejudice to the parents’ interest in being
able to choose whether or not to have any more children – then provides
grounds for reparation. This principle was unanimously accepted in the
Inner House hearing of McFarlane but, as Lord McCluskey pointed out,
there is no satisfactory English word by which to express this construct.107
Although the concept of a conventional award has no place in Scots
law, I believe that the way it was used in Rees brings the House of Lords
and the Inner House so close in principle as to be separated by little more
than semantics. Lord Slynn said: ‘it is, as I understand it, accepted that
the law of England and that of Scotland should be the same in respect of
matters which arise [from McFarlane]’108 – and there are good reasons
why this should apply to principles as well as to actuality. By concentrat-
ing on an award for breach of autonomy – and by leaving open the door
for true compensation to be paid – Rees may have furthered this aim and,
indeed, may also have, in principle, bridged the seemingly unbridgeable
gap between McFarlane and Cattanach.
Could this be applied in practice? Suppose we reconsider the wrongful
pregnancy case and invoke the loss of a legal interest – or damnum – as a
head of damage as Rees now allows us to do. Lord Hope (at [75]) drew
attention to the near impossibility of assessing the appropriate conven-
tional level of an award in such circumstances and it is certainly true that
any standardised figure must involve a compromise. One way of achiev-
ing such a compromise and, hopefully, going some way to satisfying those
supporting both sides of the argument, might be to assess the actual costs
of the unexpected child and assign a proportion of this to ‘injury to
autonomy’ such that, while the full costs of rearing a child were not
provided, an amount of compensation that was neither excessive nor
derisory was made available. In doing so, we would probably not offend
the commuter on the London Underground and, thereby, we might
satisfy the claims of distributive justice; at the same time, we could
scarcely be said to have offended the spirit of Caparo; we would provide
genuinely recognisable reparation for the affected parents and we have
not over-stretched the resources of the National Health Service.109 In
short, we have established an ambience of fairness which all those

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