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involved in this difficult area have so earnestly sought and, perhaps

107
McFarlane v. Tayside Health Board 1998 SLT 307 at 313.
108
n. 88 above, at AC 68, SC 4. Despite being heard in the same House, McFarlane was, of
course, still a Scottish case while Rees was English.
109
See Lord Bingham, n. 58 above, at AC [6].
182 The troubled pregnancy

above all, we have eliminated the intense emotions which Kirby J found to
provide such a poor basis for law making.110 Given the premise that the
proposal is based on a wholly different head of damages, there is no
conflict with McFarlane and the House of Lords could rest easy and
with a clear conscience.111
All of which seems neat and tidy – but it still carries a taint of sophistry
Would it not have been better had the House taken the bull by the horns
and, having carved an acceptable escape from the strict McFarlane rule,
had allowed room for realistic compensation – including, perhaps, com-
pensation that was variable on the facts of the case ? As things stand, the
law on wrongful pregnancy is all but settled for the foreseeable future, yet
it still remains an area in which uncertainty as to equity persists. It places
the principals in McFarlane and Rees on a par – an end-point which the
largest possible minority of the House regarded as unsatisfactory. And
it leaves the Parkinson dilemma – the one specific problem left open in
McFarlane – unresolved.

Mrs Parkinson’s case revisited. Theoretically, Lord Bingham’s jux-
taposition of cases involving healthy and unhealthy mothers and children
would include the Parkinson scenario within the ambit of the ‘conven-
tional award’. But, as Lords Millett and Scott reminded us (at [112] and
[145]), Parkinson was not under consideration in Rees; Lord Bingham’s
observation is, therefore, obiter. On the other hand, although their rea-
sons were not argued in depth, the three dissenting Law Lords in Rees
specifically approved the Court of Appeal decision in Parkinson.112
I confess to being in some difficulty here. One cannot fail intuitively to
agree, say, with Lord Hutton that it may be fair, just and reasonable that a
woman left with an uncovenanted and disabled baby should be entitled to
an award of damages for the extra costs imposed by that disability. But it
is extremely difficult to see that the doctor’s responsibility is different in
McFarlane and Parkinson – given that the disability in the latter was a
matter of chance occurrence.113 But, then, I have already flown my
colours as to believing that, if one decision is wrong, it is McFarlane, not
Parkinson.

110
In Cattanach, n. 40 above, at [151].
111
The further possibility that ÂŁ50,000 could be regarded as a variable benchmark subject
to the specific conditions of the case is left open. The possible difficulties expressed by
Walker LJ, n. 56 above, at [52]–[55] are appreciated although they can be overcome –
see Lord Hope in Rees, n. 58 above, at AC [76].
112
ibid., Lord Steyn at [35]; Lord Hope at [57]; Lord Hutton at [ 91].
113
Which is, of course, precisely the opposite argument to that used by Brooke LJ in
Parkinson at [50] – and see Lord Scott, n. 58 above, at AC [147].
Uncovenanted pregnancy and disability 183

The fact that Parkinson is unresolved at the highest level could, of
course, turn out to be an advantage or a disadvantage depending on
one’s viewpoint. A future Mrs Parkinson might well be disadvantaged
by comparison with her prototype were her case to be subsumed under
Lord Bingham’s umbrella conventional award – for it is clear that her
recompense under an unmodified Parkinson assessment might be con-
siderably more than ÂŁ15,000.114 On the other hand, the higher court
reviewing her case might find the means to alter the quantity of, if not the
reason for, that award and, thus, improve the lot of the ‘victims’ of
wrongful pregnancy as a whole. In any event, it seems that this is another
lacuna that needs to be filled before the saga of the wrongful pregnancy
case can be said to be completed.115

The proximity test
Rightly or wrongly, the Caparo test has been taken to represent the ratio of
the decision in McFarlane and this has spilled over into the subsequent
allied cases. The emphasis has, however, been very much on the ‘fair, just
and reasonable’ containment of the extent to which liability for the
economic losses resulting from negligence can be attributed. The remain-
ing limbs of the test – those of foreseeability and proximity – have tended
to get lost along the way.
Perhaps this is to be expected in respect of the former insofar as there is
no question but that economic loss is a foreseeable outcome of the birth of
a child, and this is irrespective of the health of that child or of its parents.
Proximity is, however, a more variable consideration as opinions will
differ as to the strength of the bond between the tortfeasor and his or
her victim – we will, for example, see in Chapter 6 how arguable is the
relationship between the negligent health carer and the fetus or child
arising from that negligence. For the present, we can round off the
discussion of maintenance costs that has occupied the last three chapters
with a brief look at two cases which illustrate how the liability of these can
be affected by the concept of proximity.
The first of these, R v. Croydon Health Authority,116 considers the status
of the incidental tortfeasor. Mrs R was seeking employment with the

114
And this seems to be the message delivered by Lord Bingham (at [9]) and Lord Nicholls
(at [19]).
115
Clare Dixon, ‘An Unconventional Gloss on Unintended Children’ (2003) 153 New Law
Journal 1732–3 pointed out that, while the conventional award would be additional to
‘the mother’s claim’, it is still uncertain whether it will be added to any special damages
available under the Parkinson decision. She thought it should be.
116
(1998) 40 BMLR 40, [1998] Lloyd’s Rep Med 4.
184 The troubled pregnancy

health authority and underwent a pre-employment chest X-ray. The
radiologist failed to note a significant abnormality which should have
been diagnostic of a condition known as primary pulmonary hypertension
(PPH). This is an untreatable disease which significantly reduces life
expectation and which, most importantly in the present context, is exa-
cerbated by pregnancy. Soon after commencing employment, Mrs R
became pregnant and was delivered of a healthy daughter. The diagnosis
was established while she was on maternity leave, when she was informed
of her poor prognosis and declared unfit for her demanding job. As a
result, she developed reactive depression and retired on the grounds of
ill-health.
Mrs R brought an action against the Authority the terms of which will
be apparent from the findings of the trial judge who held:
* that the pregnancy itself was a foreseeable consequence of the failure to

diagnose PPH;
* that pregnancy was so likely to have devastating consequences for a

woman with PPH that it ‘should have been in the forefront of the mind
of a competent radiologist’;
* that, if there had been no breach of duty, Mrs R would have been told

of the dangers of pregnancy ‘not only because of the threat to her life . . .
but also because she would be giving birth to a child . . . to whom she
would be unable to act as a normal mother’;
* that, therefore, pregnancy and its consequences are the kind of damage

from which the health authority must take care to save a plaintiff;117
* that Mrs R is, therefore, entitled to the reasonable costs of raising her

child.
I have set these findings out in full because they demonstrate the
profound sea change that McFarlane has forced upon judicial thinking.
Even so, the scope of Astill J’s attribution of liability was too much for the
Court of Appeal even in 1997.
The major circumstance distinguishing Mrs R’s case from any other
reported case of wrongful pregnancy was that she wanted both a preg-
nancy and a healthy child – and she had both. There was, as Kennedy LJ
put it, simply no loss which could give rise to a claim for damages in
respect of either the normal expenses and trauma of pregnancy or the
costs of bringing up the child – and, subject to Chadwick LJ’s analysis of


117
Kennedy LJ in the Court of Appeal at BMLR 45 pointed out that the judge concluded
that there was no difference in principle between this case and other cases of ‘unwanted
births’ arising out of failed sterilisation. It is clear that I would regard Mrs R’s case as
being one of ‘unwanted pregnancy’ and the Court in R v. Croydon consistently failed to
make the distinction.
Uncovenanted pregnancy and disability 185

the chain of causation, to which we return below, it is almost impossible
to argue to the contrary.118 The Lord Justice did, however, concede that
the radiologist’s breach of duty deprived her of the opportunity to eval-
uate properly the arguments for and against pregnancy – and this brings
us very close to the concept of an affront to autonomy which we have
discussed in respect of Ms Rees’s case. Would Mrs R have been entitled
to an ‘award’ of ÂŁ15,000 had it been available at the time? I believe she
should have been, assuming that that is, in fact, the correct interpretation
of the ratio of the award; whether she would have been is one of those
matters that are left unsettled by Lord Bingham’s relatively brief explan-
ation of his reasoning.119
In point of fact, on the assumption that Mrs R would not have become
pregnant had she been informed of the diagnosis when the evidence was
available, Chadwick LJ was able to trace an unbroken chain of causation
from the radiologist’s failure to identify and report the pulmonary abnor-
mality to the birth of her child; the only question for him was whether
liability for her consequent distress and expenses lay within the vicarious
duty owed her by the health authority. This question of proximity, which
is the main, albeit not the only, interest of R v. Croydon in the present
context,120 was addressed in detail by Kennedy LJ who concluded that,
even if the plaintiff’s pregnancy could be regarded as an injury, that
damage was too remote from the beach of duty to establish liability. On
the one hand, the chain of events had too many links. On the other, a
professional’s duty, when undertaking an examination to assess a per-
son’s fitness for employment, is limited to observing and reporting on the
abnormalities found and their relevance to the purpose of the examina-
tion.121 The express obligations assumed by the radiologist did not, in
Lord Justice Kennedy’s opinion, extend to the plaintiff’s private life.
Mrs R’s claim for damages for personal injures failed and was restricted
to general damages for pain and suffering limited to those due to the
complications of pregnancy attributable to PPH and to those later com-
plications which would have been avoided had the diagnosis been made at
the right time – and one cannot help feeling that even the most deter-
mined critic of the McFarlane decision would be forced to agree.

118
In fact, the Authority, in somewhat ambiguous terms, admitted liability for the ‘injury
sustained during pregnancy’ and Chadwick LJ was undecided as to what would have
happened had that admission not been made (at BMLR 51).
119
Rees, n. 58 above, at [8].
120
Chadwick LJ was able also to call upon the fairness test elaborated in Caparo, n. 18
above.
121
See also the almost contemporaneous employment case of Kapfunde v. Abbey National
plc and Daniel (1998) 46 BMLR 176.
186 The troubled pregnancy

The second case, AD v. East Kent Community NHS Trust,122 takes us
into the realm of the proximity of the injured party and can be seen as
little more than a variation on Rees: indeed, the Court of Appeal consi-
dered that, had Ms A been able to bring up her own child, they would
have had to apply Rees.123 Ms A’s case was unlike any of those we have
discussed thus far in that there was no negligent sterilisation and the
antenatal care provided was faultless. Rather, the claimant was an intel-
lectually disabled woman who was compulsorily detained under the
Mental Health Act 1983. She became pregnant, and gave birth to a
healthy daughter, having been housed in a mixed psychiatric ward.
Effectively, she sued the responsible authority for the costs of maintaining
her child who, it was contended, was the result of a ‘wrongful pregnancy’
consequent upon negligent supervision of the ward. The really significant
deviation from Rees lay, however, in the fact that Ms A was incapable of
looking after the child who was, in lieu, being cared for by Ms A’s mother;
Ms A contended that her birth was not a benefit and that the costs of
maintenance were an additional burden that was being carried by the
child’s grandmother.124
The judge at first instance applied the jurisprudence developed in
McFarlane, Parkinson and Rees and dismissed the claim. On appeal,
Judge LJ, speaking for the court, started with McFarlane and concluded
that, as a result of that decision, Ms A’s claim for maintenance would
have been unsustainable had she been able to bring up the child herself (at
[12]). Attention was, however, focused on Rees which could, nonetheless,
be distinguished on the basis that, whereas that case was decided by way
of the additional costs imposed by the mother’s disability, Ms A was
claiming the full costs of upkeep – largely because there were no additional
costs. It followed that the costs, which were being claimed on behalf of
another person, were the same costs as had been disallowed since
McFarlane was decided.
In a trenchant observation, Judge LJ drew an ‘illuminating’ comparison
between the woman who loses earnings in order to look after a negligently
injured child125 and one who, similarly, loses earnings in order to be at
home to care for a healthy child born as a result of negligent health


122
[2003] 3 All ER 1167, (2003) 70 BMLR 230.
123
ibid., at [15]. It has to be remembered, however, that Rees had not been heard in the
House of Lords at the time AD was considered in the Court of Appeal.
124
The action was brought by Ms A because a person providing voluntary services to a
relative has no cause of action in his or her own right: Hunt v. Severs [1994] 2 AC 350,
[1994] 2 All ER 385.
125
Drawing on Donnelly v. Joyce [1974] QB 454, [1973] 3 All ER 475.
Uncovenanted pregnancy and disability 187

care.126 ‘No one doubts’, he said, ‘that the tortious defendant would
be liable to pay damages to the injured child [in the former case].
Nevertheless, as we have already seen in Greenfield, losses sustained on
the same basis (loss of earnings to be at home to care for a healthy child)
were not recoverable by the mother who had been the victim of negli-
gence by a hospital authority.’127 Tellingly, he continued:
The difference is not accidental: it reflects the principle that even if the birth of the
child resulted from medical negligence, damages are not recoverable to compen-
sate for the cost of rearing a healthy child, notwithstanding that that identifiable
expense can be established,
thus pre-empting the House of Lords’ universal admission that
McFarlane represents an exception to normal legal principle.
We can, then, take leave of this chapter in the realisation that judges
may not always like the decisions that circumstances force them to take.
In dismissing the appeal in AD, the Court of Appeal expressed great
sympathy with and admiration for Mrs A. And that, surely, provides us
with a fitting epitaph to the McFarlane case and its aftermath – the victims
of wrongful pregnancy deserve more than tea and sympathy.


126
Quoting Greenfield v. Irwin (a firm) [2001] 1 WLR 1279, (2001) 59 BMLR 43, see.
p. 143 above.
127
See n. 122 above, at [19].
6 Wrongful neonatal life




Introduction
Thus far, we have been dealing exclusively with the effects of the birth of
an unwanted or unexpected child on its parents. But what of the child
itself? We have seen throughout that public policy – whether expressed
by the voice of the public itself or through the medium of the courts –
strives to ensure that such a child is not made aware of the unusual
circumstances of its conception and birth. We have also seen that, such
is the nature of humanity, most children born as a result of negligence
by third parties are accepted into the family as much loved additional
members – and this includes many who are disabled.1
Thus, the healthy child, at least, is unlikely to resent his or her exis-
tence. There may, however, be circumstances in which a newborn child is
so badly disabled that it may be inferred that he or she would rather not be
alive. As Templeman LJ put it in the ground-breaking case of Re B
(a minor):

There may be cases of severe proved damage where the future is so certain and
where the life of the child is so bound to be full of pain and suffering that the court
might be driven to a different conclusion [ than that the child must live] (emphasis
added).2

But the doubts expressed by the Lord Justice serve to underline that
we are, here, in uncharted waters for we cannot know what are the inten-
tions and aspirations of a neonate who has never known an alternative


1
This book is not, of course, concerned with the far greater number of children who are not
actively sought but whose existence owes nothing to failure on the part of outside agencies.
The fact that they exist in happy families must, however, be evidence that non-planning is
not a frequent cause of psychological conflict between parents and children.
2
Re B (a minor)(wardship: medical treatment) [1990] 3 All ER 927 at 929, [1981] 1 WLR
1421 at 1424. I believe this still represents the common law and do not accept the very
limited meaning described by Ackner LJ in McKay v. Essex Area Health Authority [1982]
QB 1166 at 1188. We will return to Re B in the next chapter.

188
Wrongful neonatal life 189

situation. An action brought by a neonate against someone believed to be
responsible for his or her ‘wrongful life’ is one brought on an assumption –
and it cannot be denied that it is, in practice, activated by others who, in
the modern jargon, often have their own agenda.


The wrongful life action in history
The essential feature of the wrongful life action is that it is brought by
a disabled neonate. The fact that it is almost always accompanied by a
complementary action on the part of the child’s parents leads to confu-
sion but is otherwise immaterial – the two will run independently of each
other. At the same time, it is difficult to decide where and when the phrase
‘wrongful life’ originated – if it ever did as such. Capron suggested that
the term ‘wrongful life’ was ‘a play on the statutory tort of ‘‘wrongful
death’’’ which, he said, had inspired judges in subsequent opinions to
coin a number of related phrases.3 Whoever is responsible, he or she
certainly did the later plaintiffs no service as the implication that ‘life’ can,
of itself, be wrongful, or a type of harm, has always been something that
the courts – and perhaps even the general public – have found hard to
accept. What the infant plaintiff finds ‘wrong’ is not that he or she is alive
but, rather, that he or she is alive and suffering as a result of another’s
negligence and it is a widespread failure to appreciate this unity that has
led to much of the confusion.4
The introduction of the concept of negligent injury, however, itself
raises problems of definition. The umbrella of wrongful life does not
include life with injuries of a type which could be prosecuted under the
criminal law; furthermore, no-one is denying the fundamental right of a
neonate to sue for physical injuries sustained in utero5 as a result of civil
negligence. Rather, in searching for a positive definition, we are consi-
dering the existence of a disabled child which, but for the negligence of


3
Alexander Morgan Capron,‘Tort Liability in Genetic Counselling’ (1979) 79 Columbia
Law Review 618–84. In other words, the conventional categories of pre-natal torts, like
Topsy, ‘just growed’. The Court in the relatively recent US case of Kassama v. Magat 792
A 2d 1102 (Md., 2002), see n. 14 below, drew attention to the classification of troubled
pregnancies provided in Walker by Pizano v. Mart 790 P 2d 735 (Ariz., 1990) but,
although that court recognised the ‘confusion as to the proper denomination of these
prenatal torts’ (at 737), no origin was suggested.
4
Put another way, it is ‘precisely by focusing on the plaintiff’s life (as a whole), rather than
negligent causation of physical damage, that courts have been led to misapply ordinary
principles and thus deny recovery’: Dean Stretton, ‘The Birth Torts: Damages for
Wrongful Birth and Wrongful Life’ (2005) 10 Deakin Law Review 310–64.
5
At least since Burton v. Islington Health Authority, de Martell v. Merton and Sutton Health
Authority [1993] QB 204, [1992] 3 All ER 833, CA. We revisit the subject at p. 210.
190 The troubled pregnancy

the health carers, could have been averted if the parents, acting as the
guardians of the potential neonate, had been advised of the opportunity to
terminate the pregnancy.6 There are, then, two main ways in which such
a cause may arise. Most commonly, and typically, an event injurious to
the fetus arises during pregnancy and is either misdiagnosed or ignored –
the same conditions as will set the scene for an action for wrongful birth.
Alternatively, a negligent action or negligent advice will have set up the
conditions that predispose a woman to carry a disabled child in the future;
such a situation may give rise to what is known as a pre-conception tort in
respect of the fetus. Both may open the way for an action by the resulting
neonate in respect of wrongful life but one raised in the latter circum-
stance is, in my view, atypical in that the choice denied the woman is
whether or not to conceive rather than whether to terminate a pregnancy.
The choices are not of precisely the same order and we will return to the
distinctions below at p. 196.
It is remarkable that, wherever one looks in the several Commonwealth
jurisdictions, cases involving an action for wrongful life in the last decades
of the twentieth century are spoken of in terms of a ‘novel cause of action’.
There is virtually no development of a jurisprudence, and the great
majority of cases have fallen at the first hurdle; the jurisdiction simply
does not recognise so-called wrongful life as actionable and, indeed,
much of the courts’ time has been taken up with adjudging whether
the claim should be struck out as disclosing no cause of action. It might,
then, be said that the issue is dead and does not merit examination
after exhumation. Yet it is precisely because of this remarkable stay of
evolution that interest in the subject has recently revived. A quarter of
a century or thereabouts is a long time between comparative cases.
Community attitudes change and the common law allows for this by
continued review of the various situations it covers. A precedent that is
not reconsidered in due time may become dangerously out of step with
related law and this may be particularly true of attitudes to wrongful
life which have remained static while those on abortion, which are inte-
gral to the concept, have altered dramatically. Some of the comments


6
Several courts and commentators would include children born under social disability
within this definition. The old US case of Zepeda v. Zepeda 190 NE 2d 849 (Ill., 1963), in
which a child pled ‘wrongful life’ because of being born illegitimate, is an archetypal case.
It was rejected, not because there was no tortious element involved, but because of the
extended jurisprudential issues involved. Such actions are unlikely to recur and are
peripheral to the current discussion. In any event, my definition involves the availability
of legal termination of pregnancy – it is at least arguable that it would not be in such cases
in the UK despite the virtual carte blanche provided by the Abortion Act 1967, s.1(1)(a)
(for which, see p. 28).
Wrongful neonatal life 191

quoted from the cases which follow would be, at least, surprising if they
were made today.7
The fact that wrongful life actions are not entirely dormant may be
due to their close association with those for wrongful birth – if only as a
matter of form8 – and there is a recognisable trend to this effect in many
of the judicial opinions given in the more recent cases wherever they
have been heard. Moreover, we will see that this has spilled over into
actual acceptance of the claim in Europe, a matter that may become of
more than passing interest to the courts of the United Kingdom. It is,
therefore, not entirely otiose to consider the subject from a historical
perspective and, in view of the generally negative approach of the
Commonwealth courts, we must, almost inevitably, turn for this to the
United States.


Wrongful life in the United States
The judicial discussions in McFarlane v. Tayside Health Board9 have
shown us how difficult it can be to establish distinct precedents by
way of the jurisdictions of the United States and, as has been noted, this
is unsurprising in view of the varying cultures and the large number of
individual legal systems involved. In fact, this difficulty hardly arises in
respect of wrongful life. The number of courts that have accepted such
an action is very small and while, paradoxically, those that have done
so have attracted particular analytic consideration, it could be that this
virtual unanimity has been so striking as to be highly influential in
shaping the pattern in other Anglophone countries.
The scene was set by Gleitman v. Cosgrove10 in which a woman who
sustained German measles in pregnancy was assured there was no like-
lihood of resulting abnormality in her fetus. The child, who was seriously
afflicted, sued on the grounds that, but for the negligent advice given,
his mother would have terminated the pregnancy and he would not be



7
‘This is an evolving area of the law . . . It is only recently that the parents’ wrongful birth
claim has been recognized by a Canadian court . . . More generally, the legal regime relating
to abortion has undergone significant change resulting in an expanded scope for parental
choice.’ Per Sharpe J in the Canadian case Sharma v. Mergelas, Nowaczyk v. Majewski
(unreported, 1997), quoted by Epstein J in Petkovic v. Olupona [2002] O.J. no. 3411.
8
‘In the circumstances of this case, it would not be an efficient use of resources to carve out
the wrongful birth part of the claim to proceed through the appeal route bare of the facts
while the rest of the action proceeds to trial.’ Per Epstein J in Petkovic v. Olupona, n. 7
above at [27].
9
See, in particular, p. 107 above. 10 227 A 2d 689 (N.J., 1967).
192 The troubled pregnancy

living in a disabled condition.11 The court rejected the claim on three
grounds:
* Damages in tort are measured by comparing the condition the plaintiff

would have been in if the defendants had not been negligent with his or
her condition that resulted from the negligence; it is impossible to
make such a determination when the difference is between an impaired
existence and ‘the utter void of non-existence’;
* In view of the fact that the law places a very high value on human life,

the birth of a defective child could not be regarded as an injury to the
child;
* Given the opportunity, the child, himself, would probably have chosen

life. This was expressed in the now famous extract:

It is basic to the human condition to seek life and hold on to it however heavily
burdened. If Jeffrey [the child] could have been asked as to whether his life should
be snuffed out before his full term of gestation could run its course, our felt
intuition of human nature tells us he would almost surely choose life with defects
as against no life at all.12

In the equally well-known case of Becker v. Schwartz,13 a wrongful life
action that was raised by a child with Down’s syndrome whose 37-year
old mother had not been offered amniocentesis, was denied – largely on
the grounds that the child did not suffer any cognizable injury and,
second, that the action demanded:
A calculation of damages dependent upon a comparison between the Hobson’s
choice of life in an impaired state and non-existence,

a task which the court considered it was not equipped to undertake.
Thus, we can see that, ab initio, the American courts have resisted the
wrongful life action but for a variety of well-rehearsed reasons. A case
by case analysis of these would be interesting to the medical historian
but, once the principles have been established, I doubt if it would be
of great significance in the present context. We should, however, have
some idea as to the extent of diversity of early opinion and, to this end,
I will lean gratefully on the listings provided in two recent US cases:

11
It is to be noted that Gleitman was decided before the seminal decision in Roe v. Wade 410
US 113, 93 S Ct 705 (1973) (see p. 19 above). The court, however, assumed that a
termination would have been lawful given the predictability of birth defects.
12
n. 10 above, at 693. The problems of ‘substituted judgment’ are discussed in greater
depth in the next chapter. For the moment, it only needs to be remarked that this is a very
subjective assessment which, again, raises the question of whether judges should be
swayed by their own morality when fashioning the law.
13
386 NE 2d 807 (N.Y., 1978).
Wrongful neonatal life 193

Kassama v. Magat14 and Willis v. Wu.15 The latter’s assessment is likely to
be particularly authoritative as it was the first case to be heard in South
Carolina which, at the time, remained among twenty-one states in which
it was believed that the issue of ‘wrongful life’ had not been previously
addressed. The indications were that twenty-seven states had expressly
refused or limited a wrongful life action either by way of judicial opinion,
statute or both, while three, to which we will return, had allowed the
cause of action.
In general, we can isolate two main reasons that are fundamental to the
rejection of the wrongful life action in the United States, the first – and
most common – being, as in Becker, that there was no cognizable injury
in being born and that it was impossible to compare the effects of being
born disabled with not being born.16 The second lies in the obvious
problem that the health carers concerned in the management of the
pregnancy did not cause the children’s disabilities when they were, in
fact, due, for example, to a chromosomal abnormality; no person could
be blamed and, without physical causation, there can be no legal causa-
tion and, hence, no negligence. Other, more individualised, reasons
include a distinction between the physician’s duty to inform the parents
and the absence of a similar duty to the fetus.17 However, in the majority
of instances, multiple reasons have been given and, lurking in the back-
ground of judicial opinion, there is always the problem of quantifying the
value of non-life in comparative terms. It has become almost customary
for judges to avoid this issue by recourse to pseudo-theology; this is
generally unhelpful and I will turn to alternative approaches in the
conclusion to this chapter. Meantime, it is noteworthy that a number of
state legislatures have appreciated the severity of the judicial dilemma and


14
792 A 2d 1102 (Md., 2002). 15 607 SE 2d 63 (S.C., 2004).
16
The following is the illustrative list provided in Willis: Elliott v. Brown 361 So 2d 546 (Ala.,
1978), Walker v. Mart 790 P 2d 735 (Ariz., 1990), Lininger v. Eisenbaum 764 P 2d 1202
(Colo., 1988), Garrison v. Medical Center of Delaware, Inc. 581 A 2d 288 (Del., 1990),
Kush v. Lloyd 616 So 2d 415 (Fla., 1992), Blake v. Cruz 698 P 2d 315 (Idaho, 1984),
Siemieniec v. Lutheran General Hospital 512 NE 2d 691 (Ill., 1987), Cowe v. Forum Group,
Inc. 575 NE 2d 630 (Ind., 1991), Bruggeman v. Schimke 718 P 2d 635 (Kan. 1986),
Grubbs v. Barbourville Family Health Center 120 SW 3d 682 (Ky., 2003), Kassama v.
Magat 792 A 2d 1102 (Md., 2002), Wilson v. Kuenzi 751 SW 2d 741 (Mo., 1988), Greco
v. United States 893 P 2d 345 (Nev., 1995), Smith v. Cote 513 A 2d 341 (N.H., 1986),
Azzolino v. Dingfelder 337 SE 2d 528 (N.C., 1985), Nelson v. Krusen 678 SW 2d 918
(Tex., 1984). The Court in Kassama suggests that we should add: Strohmaier v. Associates
in Obstetrics and Gynecology 332 NW 2d 432 (Mich., 1982), Berman v. Allan 404 A 2d 8
(N.J., 1979), Flanagan v. Williams 623 NE 2d 185 (Ohio, 1993), Ellis v. Sherman 515 A
2d 1327 (Pa., 1986), Dumer v. St. Michael’s Hospital 233 NW 2d 372 (Wis., 1975). We
also have Hester v. Dwivedi 733 NE 2d 1161 (Ohio, 2000) continuing the trend.
17
James G v. Caserta 332 SE 2d 872 (W.Va., 1985).
194 The troubled pregnancy

have solved it by outlawing – or, at least, limiting – the wrongful life action
by way of statute.18 The most common ground for so doing appears to
be a rejection of any action that depends on a finding that, in the absence
of negligence, a ‘person’ would have been aborted – thus, tacitly under-
mining the state’s basic interest in the preservation of human life.19 As a
result, there is a considerable collateral antipathy to actions for wrongful
birth which we have discussed in detail in Chapter 3.

Wrongful life accepted in the USA. Only three US jurisdictions
have accepted an action for wrongful life and in none of these could
supporters of the suit be said to have gained an outright victory. This,
coupled with the exceptional nature of the cases, dictates the need for
their study in rather greater depth than has been given to the norm. The
starting point is Curlender v. Bio-Science Laboratories – a case in which the
parents of the plaintiff child were given incorrect information as to the
likelihood of their being carriers of the gene for Tay-Sachs disease.20 As a
result, Shauna was born with severe disabilities.
The Curlender court was markedly influenced by the dissenting opin-
ions in Gleitman21 and in Berman v. Allan.22 In the former, the failure to
redress a wrong – and the consequent indemnity of the wrongdoer – was
given as a strong reason against disallowing a wrongful life action and, in
the latter, it was said:
An adequate comprehension of the infant’s claims under these circumstances
starts with the realization that the infant has come into this world and is here,
encumbered by an injury attributable to the malpractice of the doctors,23


18
These include Idaho, Indiana, Maine, Michigan, Minnesota, Missouri, North Dakota,
Pennsylvania, South Dakota and Utah – and in many there is both judicial and statutory
disapproval.
19
It is important to remember that, at least in a high proportion of cases, the fetus will be
comparatively well-developed by the time intervention to avoid wrongful birth or wrong-
ful life is indicated. The ‘three trimester’ rule developed in Roe v. Wade (see Chapter 2 at
p. 19) can, therefore, be invoked in such cases, thus avoiding a clash with the woman’s
constitutional right to control her own early pregnancy.
20
(1980) 165 Cal Rptr 477, CA. There is some confusion in this case insofar as the court
was uncertain as to whether the negligence occurred before or after conception. It could
well be that, were the former true, the case might be one of ‘preconception tort’ and,
accordingly, less than strictly relevant in the present context. See discussion of Turpin v.
Sortini, n. 26 below.
21
n. 10 above.
22
404 A 2d 8 (N.J., 1979). A case of a Down’s syndrome birth to an elderly mother who had
not been offered amniocentesis. The court allowed damages for emotional distress but
refused to award lifetime support for the child. At the same time, it rejected the child’s
action for wrongful life.
23
ibid., at 404 A 19.
Wrongful neonatal life 195

an observation with which, surely, few would disagree – that is, so long as
one accepts that the ‘wrong’ lies in a failure to advise the parents. The
nub of the dilemma is, of course, that, as we have already noted, no-one
could accuse the health care team of having caused the child’s genetic
defect – and it was this difficulty that the Curlender court was mainly
concerned to circumvent.
In a somewhat subjective analysis of a surprisingly large number
of cases, the court identified a measure of progression in the law –
particularly by way of a retreat from the ‘impossibility of measuring
damages’, the acceptance of a changing ‘public policy’ and the persistent
pursuit of such actions despite their general judicial disapproval – that
being, perhaps, based on ‘the understanding that the law reflects, perhaps
later than sooner, basic changes in the way society views such matters’.24
The reality of the ‘wrongful life’ concept, it was held, is that the infant
plaintiff both exists and suffers due to the negligence of others – effectively
other considerations were of secondary significance only. The court con-
cluded that it was clearly consistent with the applicable principles of tort
law to recognise the cause of action by the child. It is of more than passing
interest that a refusal to terminate a pregnancy in the face of good advice
would, in the opinion of the court, have provided an intervening act such
as to preclude liability insofar as defendants other than the parents were
concerned. The court went even further and could see no sound public
policy which would protect the parents from being answerable for the
‘pain, suffering and misery’ of their offspring.25
Although the Curlender decision is, at least in the writer’s opinion, to
be applauded on the grounds of equity, it is difficult to avoid the conclu-
sion that it was based to a large extent on pragmatism. Indeed, there
is much in it to criticise – in particular, its failure to consider the relation-
ship between the wrongful birth and the wrongful life action. As a result,
it is unsurprising that it had a relatively short life, even within the confines
of California, where the problem was next considered in Turpin v. Sortini.26
Turpin is, however, yet another case which demonstrates the extraordi-
nary difficulties in the way of achieving clear definitions within the para-
meters of the troubled pregnancy. The Turpins had a daughter who, it
transpired, suffered from congenital deafness. The condition was, how-
ever, not diagnosed at the time and, consequently the parents were not



24
Per Jefferson J, n. 20 above, at Cal Reptr 477,
25
Such an action, which one can hardly see as being compatible with public policy, is now
statute barred in California: Cal. Civ. Code x43.6.
26
(1982) 31 Cal. 3d 220.
196 The troubled pregnancy

warned of a possible hereditary, genetically determined cause.27 The
parents maintained that they would not have conceived another child
had they been properly counselled; in the event, however, they proceeded
to a second pregnancy which resulted in a child, Joy, who was similarly
afflicted. There is, thus, no doubt that, as was a possibility in Curlender,
Turpin is fundamentally classifiable as a preconception tort and, as such,
sits uneasily in a discussion of the wrongful life action in the United States.
It follows, therefore, that, before addressing the case in detail, we should
first take a diversion by which to assess the relationship between the two
actions and, thus, to establish the true significance of Turpin within the
wrongful life scenario.

Wrongful life and the preconception tort. Actions resulting from
‘wrongful’ – or, far better, ‘diminished’ or ‘disabled’ – life that are due,
on the one hand, to preconception and, on the other, to postconception
negligence have much in common. Both may depend upon information
based negligence – or defective counselling – and, in such circumstances,
the parallel claim for wrongful birth that is commonly raised on behalf
of the parents has never been denied in recent tort law. Similarly, the
child, in both cases, is effectively saying that he or she has been deprived
of the opportunity to decide, by proxy, whether or not it should exist in a
disabled state. There is, however, a major distinction to be made as to
the purpose of the advice that is sought, insofar as the vexed question
of encouraging abortion has no place in the preconception case; thus,
a major policy argument against allowing a wrongful life action is
eliminated. Moreover, in the majority of – though not, as we will see, in
all – preconception torts, a responsible tortfeasor will be recognisable.
The clear inference is that the child’s action is more acceptable in the
preconception case than it is in the event of postconception negligence.28
There is, however, a conflicting distinction to be made as to the extent
of the duty of care – and, hence, liability – in the two cases. We have seen
that it is, at least, arguable – and is, in my view correct – that the physician
attending a pregnant woman also owes a recognisable duty of care to her
fetus; this has, indeed, been a mainstay of many wrongful life actions of


27
Some 50 per cent of cases of congenital deafness are of genetic origin – at least in the
United Kingdom. We have discussed the significance of this in the modern context of
genetic testing and screening in Sheila A. M. McLean and J. Kenyon Mason ‘Our
Inheritance, Our Future: Their Rights?’ (2005) 13 International Journal of Children’s
Rights 255–72.
28
This discussion is, of course, based on common law principles. We return to the statutory
situation at p. 210.
Wrongful neonatal life 197

the postconception type.29 The distinction is, essentially, one of proxim-
ity. Thus, while a significant relationship between the fetus and its
mother’s physician may yet be regarded as uncertain, it will certainly be
far more difficult to establish a proximate relationship giving rise to a
duty of care between the health carer and a non-existent being – which
describes the status of the principals at the time of the preconception
negligence. One cannot help feeling that the class of ‘potential child’
should be regarded as being too wide and too remote a basis on which
to found such a legal duty on the individual physician; it might just be
possible to classify ‘the next affected child, or any other child, that Mr and
Mrs X may have’ as an identifiable person, but it would surely be difficult
to do so.30 In such an instance, it might also be asked whether it is fair or
just to leave an admittedly negligent health carer in doubt as to his or her
liability for an eventuality that may or may not arise at some time in the
future depending on conditions that are outside his or her control.31
This argument was well developed in the comparatively recent
Californian case of Hegyes v. Unjian Enterprises, Inc.32 in which a child
claimed that injuries sustained by her mother in a vehicular accident were
responsible for disabilities due to her premature birth some two years
after the incident. The trial court having rejected the claim, the appeal
depended entirely on the question of whether or not a negligent motorist
owed a legal duty of care to the subsequently conceived child of a woman
who was injured as a result of the negligence. Although it may be unusual
to call upon a road traffic accident as a precedent for clinical medical
negligence, Hegyes is, in the writer’s opinion, highly significant in the
present context in that it crystallises the question that is intrinsic to
the preconception tort – that is, whether causation (which will scarcely
be in doubt in the majority of cases) is the essential element in establishing
negligence or whether it must always take second place to the existence

29
I. Kennedy and A. Grubb Medical Law (London: Butterworths, 3rd edn 2000) cite
Poynter v. Hillingdon Health Authority (1997) 37 BMLR 192, QBD and Thomson v.
James (1997) 41 BMLR 144, CA as analogous precedents in this connection – duty to
inform parents on behalf of their child.
30
It seems to me that the principles evolved in, say Palmer v. Tees Health Authority [1999]
Lloyd’s Rep Med 351 (Authority has no duty of care to potential but unidentifiable
victims of a psychopath) or Goodwill v. British Pregnancy Advisory Service [1996] 2 All
ER 161, [1996] 31 BMLR 83 (no duty of care to potential sexual partners) would apply.
31
For arguments as to the indeterminate time over which such an action could be brought,
see Albala v. City of New York 420 NE 2d 786 (1981, N.Y.). See also the dissent in
Renslow v. Mennonite Hospital 367 NE 2d 1250 (Ill., 1977) where the effect of allowing
such actions was described as ‘emasculating the principles of duty and foreseeability [in
cases of negligence] whenever causation can be shown’, per Ryan J at 1262.
32
(1991) 234 Cal App 3d 1103. The tortfeasor in this case was a driver rather than a health
carer. Nonetheless, the court considered that this did not alter the principles involved.
198 The troubled pregnancy

of a duty of care and its breach – which most commentators would see as
the essence of the negligence action.33 The majority opinion in Hegyes
is worth quoting in extenso if for no reason other than to emphasise its
uncompromising terms:
The tort rationale for imposing liability on a defendant for preconception negli-
gence is grounded on duty, and not just causation analysis. While causation is an
indispensable element of negligence liability, it is neither the only element, nor a
substitute for ‘duty’ . . . The determination that a duty of care exists is an essential
prerequisite to liability founded in negligence . . . There must be a legal duty owed
to the person injured to exercise care under the circumstances, and a breach of
that duty must be the proximate cause of the resulting injury.34
And more specifically as to the preconception tort:
It has been aptly observed, however, that causation cannot be the answer; in a
very real sense the consequences of an act go forward to eternity, and back to the
beginning of the world. Any attempt to impose responsibility on such a basis
would result in infinite liability for all wrongful acts, which would ‘set society on
edge and fill the courts with endless litigation’.35

Even giving full allowance to the fact that the defendant in Hegyes was
a driver and not a health carer, extrapolation of this view to the latter’s
responsibility seems to be such a logical step as to be virtually incon-
testable. Nonetheless, the analysis is certainly contrary to the mainstream
United Kingdom view.36 The arguments that I have developed above
were, for example, also well aired in the Australian case of X and Y v. Pal37
from which it is clear that, given the right circumstances, the courts are
happy to accept that the special relationship that is needed so as to avoid
reliance on a simple causation/liability formula can be constructed:
Although factors such as the passage of time or the intervention of other medical
practitioners might serve to deny the existence of a causal connection . . . I see no
reason why ordinarily the doctor should not be regarded as having been in a

33
I.e. there is no cause of action in the absence of a duty, thus rendering causation irrelevant.
34
n. 32 above, per Woods J at 1134.
35
Per Woods J quoting from Renslow v. Mennonite Hospital, n. 31 above, at 1254. A good
example is to be found in Estate of Amos v. Vanderbilt University 62 SW 3d 133 (Tenn.,
2001), in which a later husband successfully claimed damages for infection with HIV
from a hospital that failed to warn a woman she might have been given a contaminated
transfusion; the hospital owed no duty to the potential husband but, nonetheless, it was
foreseeable that the patient would one day marry and have a family.
36
See the important article by Adrian Whitfield, ‘Common Law Duties to Unborn
Children’ (1993) 1 Medical Law Review 28–52.
37
(1991) 23 NSWLR 26, [1992] 3 Med LR 195. Here, the doctor failed to diagnose
syphilis in a pregnant woman and a later sibling also suffered from undiagnosed con-
genital syphilis. The case is complicated by the fact that the index child was disabled due
to a combination of pre- and post-conception negligence.
Wrongful neonatal life 199

relationship of proximity with a category of persons including the patient and
children later born to her.38
Simplistically, therefore, it seems that liability for a preconception tort
resulting in disability can be imposed – but only if the tortfeasor was, at
the time, in a professional relationship with the mother of the damaged
child; and, while it may be hard to apply the principles of justice and
reasonableness even in such limited conditions, many would see it as a
pragmatically acceptable solution to a problem that defies logic.39
We are, however, still not out of the jurisprudential wood as there are
subtle variations in the tort itself which can, once again, result from
negligent clinical practice or faulty communication. The classic instance
of the former is to be found in Renslow v. Mennonite Hospital40 in which
the doctors transfused Rh-positive blood into an Rh-negative woman
who, consequently, developed anti-Rh antibodies; they were found liable
for the disabilities sustained by a later child who developed haemolytic
disease of the newborn. As to the latter, there is little doubt that Turpin
stands out as the best argued example from the US jurisdiction. As we
have already noted, however, the difficulty lies in the anomaly that, while
Turpin is unarguably an instance of preconception tort, it is widely quoted
as the US case which has come closest to accepting a plea of wrongful life.
One can, therefore, reasonably ask if there is any practical purpose in
separating the two actions.
To an extent, and given the specifics of Californian law, the problem is
already solved – Californian law distinguishes only two torts in respect of
the troubled pregnancy:
Some authorities have broken the categories down further, but in this opinion we
will follow the general usage: ‘wrongful life’ for all actions brought by children and
‘wrongful birth’ for all actions brought by parents.41
Thus, the argument is sterile in respect of the state of California although
it is doubtful if the same can be said on a global basis. The great majority
of preconception torts, as already noted, are fought on the basis of
negligence simpliciter; there is little of the deeper philosophical or
moral argument that surrounds the action for what is generally known

38
Per Clarke JA at (1992) 3 Med LR 206.
39
For some additional difficulties imposed by the time relationship see Enright v. Eli Lilly &
Co 570 NE 2d 198 (N.Y., 1991) where an attempt to attribute liability for third
generation disability was dismissed as an unreasonable extension of tort law.
40
n. 31 above. Later similar cases include Lazevnick v. General Hospital of Munro County,
Inc. 499 F Supp 146 (Md., 1980) and Yeager v. Bloomington Obstetrics and Gynecology,
Inc. 585 NE 2d 696 (Ind., 1992).
41
Turpin v. Sortini (1982) 31 Cal 3d 220 at 225, n. 4.
200 The troubled pregnancy

as ‘wrongful life’.42 Indeed, we will see that these differences may form
the basis for preferring to follow the former course of action rather than
the latter.43 It is doubtful if everyone would dismiss the difference
between the two actions as depending only on the damages sought.44
Enough has, however, been said to justify the inclusion of Turpin v. Sortini
as a major contribution to the wrongful life debate.

Turpin and its siblings revisited. The history of Turpin has been
outlined above at p. 195, from which it will be seen that the case fits easily
within the matrix of the action for wrongful life based on failure of
communication. Its main jurisprudential importance, however, lies in
its having imposed an early halt to the development of the wrongful life
action along the lines that were initiated in Curlender – the whole purpose
of the Californian Supreme Court hearing of the case was to resolve
the conflict raised by the dismissal of Joy Turpin’s action in the Court
of Appeal in the face of the contrary decision by a different panel of the
Court in Curlender.
Turpin, however, followed the now familiar pattern in, firstly, accepting
the fact that compensation for negligent antenatal injury was widely
acceptable and available to the neonate throughout the common law
jurisdictions but, secondly, appreciating that actions for wrongful life
constitute an exception to the rule insofar as a child has sustained ‘no
legally cognisable injury’ through having been born. Even so, the Court
found a public policy that dictates that ‘life of whatever type is preferable
to non-life’ to be inadequate grounds for rejecting the child’s claim for
wrongful life. Amongst other arguments, the court noted that adult
patients have an absolute right to control their own therapeutic destiny
and that this right is generally extended to parents when the interests


42
The availability of the preconception tort is established in the United Kingdom by way of
the Congenital Disabilities (Civil Liability) Act 1976. S.1(1) holds that:
If a child is born as the result of such an occurrence before birth as is mentioned in
subsection (2) below, and a person (other than the child’s own mother) is under the
section answerable to the child in respect of the occurrence, the child’s disabilities are to
be regarded as damage resulting from the wrongful act of that person and actionable
accordingly at the suit of the child.
The relevant part of subsection (2) defines an occurrence to which section 1 applies as
one which:
(a) affected either parent of the child in his or her ability to have a normal, healthy child.
The conditions for the preconception tort are, thus, established precisely.
43
See, in particular, Cherry v. Borsman (1992) 94 DLR (4th) 668 discussed in detail here
at p. 228.
44
See Woods J in Hegyes, n. 32 above, at 1112.
Wrongful neonatal life 201

concerned are those of their children – the wrongful birth action can,
therefore, be seen as being brought as much in the defective child’s
interests as in those of its parents. True, Joy Turpin’s only disability was
deafness but it is hard to disagree with the Turpin court that there will be
times when the disability is such that it would be impossible to assert with
confidence that the resultant life was preferable to no life at all.
The court was, however, still not persuaded by its own powerful
argument and preferred to revert to the practical impossibilities of deter-
mining whether the child has, in fact, suffered an injury in being born and,
even if that were to be shown, in assessing the general damages – or,
indeed, the benefit offset available to a much-loved child – in any fair
way.45 Even so, the Turpin court offered a significant olive branch to the
supporters of the wrongful life claim in holding that Joy was entitled to
claim for the ‘extraordinary expenses for specialised teaching, training
and hearing equipment’ that she would incur during her lifetime. The
importance of this decision lies in the award of special damages to the
plaintiff child and, accordingly, the withdrawal of such damages under
the parents’ action for wrongful birth. The reason given by the court
depended on the principle that the child’s own medical care should be
available to the child directly and should not be subject to the inherent
vagaries of an indirect award. We will see later that this very sensible
interpretation of the law of compensation has found its way into the
European jurisprudence.46 Nonetheless, it is arguably inconsistent to
allow special damages but deny general damages for what is, in effect,
the same tort.47
In the following year, the Supreme Court of the State of Washington
considered the issues in Harbeson v. Parke-Davis, Inc.48 and, in a single
decision, affirmed the availability of actions for preconception tort,
wrongful birth and wrongful life within that jurisdiction. We are, here,
most obviously concerned with the last of these, as to which, the Court
agreed with its opposite number in California that the child’s need
for medical care ‘will not miraculously disappear when the child attains
his majority’. Rather than leave the future to something of a lottery
decision, the court preferred to place the burden of all such costs on the

45
‘When a jury considers the claim of a once-healthy plaintiff that a defendant’s negligence
harmed him – for example, by breaking his arm – the jury’s ability to say that the plaintiff
has been ‘‘injured’’ is manifest, for the value of a healthy existence over an impaired
existence is within the experience [or] imagination of most people. The value of non-
existence – its very nature – however, is not.’ Quoting from Speck v. Finegold 408 A 2d 496
(Pa., 1979) per Spaeth J at 512.
46
See p. 233. 47 See the dissenting opinion of Mosk J.
48
656 P 2d 483 (Wash., 1983).
202 The troubled pregnancy

negligent medical advisers – thus, effectively, again underlining the logi-
cal superiority of the wrongful life action over that for wrongful birth once
the breach of a common duty of care has been established.
So much, then, for the West Coast. We must, however, look at one
further case if only to show that acceptance of the wrongful life action
is not simply a matter of a cultural divide between the eastern and western
states of the USA. Procanik v. Cillo49 is, in fact, interesting for its own sake
in that the New Jersey court overturned its own ruling in Gleitman v.
Cosgrove50 – a case which, as we have already seen, had hitherto provided
the main foundation for the general rejection of the wrongful life suit.
Procanik is, at the same time, an unsatisfactory case insofar as the parents’
parallel action for wrongful birth, a suit which had already been accepted
in New Jersey,51 was time-expired – leading the Court to muse:
Law is more than an exercise in logic, and logical analysis . . . should not become
an instrument of injustice. Whatever logic inheres in permitting parents to recover
for the cost of extraordinary medical care incurred by a birth-defective child, but
in denying the child’s own right to recover those expenses, must yield to the
injustice of that result. The right to recover the often crushing burden of extra-
ordinary expenses visited by an act of medical malpractice should not depend on
the ‘wholly fortuitous circumstance of whether the parents are available to sue’.52

As a result, Procanik has been described as ‘the paradigm of hard cases
making bad law’.53 Which, of course, depends on your interpretation of
‘bad law’ – it is clear that, despite its vagary, this writer, for one, sees it as
a preferable conclusion to outright rejection irrespective of the legally
suspect means adopted in reaching it.54 The story of Procanik is the now
familiar one of the child born with the congenital rubella syndrome as a
result of the physician’s failure to recognise infection in his mother. The
court accepted the opportunity to review and revise two previous signifi-
cant decisions which we have already noted. In Gleitman v. Cosgrove,55 the
court, as we have seen, had retreated into the ‘impossible compar-
ison’ position – as between impaired and non-existence – inherent in
the wrongful life action and, accordingly, had rejected the child’s claim.
At the same time, however, it had also rejected the parents’ claim for

49
478 A 2d 755 (N.J., 1984). 50 n. 10 above.
51
Berman v. Allan 404 A 2d 8 (N.J., 1979).
52
Per Pollock J at 762. Quoting from Turpin, n. 26 above, at 965.
53
Schloss v. The Miriam Hospital 1999 R.I. Super LEXIS 116 per Israel J at 15. Procanik also
resulted in an unsuccessful action for legal negligence: Procanik v. Cillo 543 A 2d 985
(N.J., 1988).
54
Procanik has, in fact, stood the test of time, at least in New Jersey: Michelman v. Ehrlich
709 A 2d 281 (N.J., 1998).
55
n. 10 above.
Wrongful neonatal life 203

wrongful birth – on the dual grounds of the impossibility of assessing
the damage sustained and of the importance of sustaining life however
heavily burdened it might be. This decision had been substantially modi-
fied in Berman v. Allan56 – a ‘missed’ Down’s syndrome case – in which
the change in public attitudes to termination of pregnancy during the
intervening seventeen years57 was accepted as was the feasibility of assess-
ing the parents’ emotional suffering in monetary terms. Thus, the Berman
court allowed a wrongful birth action. At the same time, it still rejected
the parents’ claim for expenses in rearing a disabled child and it declined
to recognise a wrongful life action on behalf of the child – not only had the
child ‘not suffered any damage cognizable at law by being brought into
existence’ but ‘such an award would be disproportionate to the negli-
gence of the defendants and would constitute a windfall to the parents’.
The Procanik court, however, went one, albeit tentative, step further
forward in recognising that the trend of the decisions to date indicated ‘an
awareness that damages would be appropriate if they were measurable by
acceptable standards’.58 To this end, they elaborated the interesting
proposition that injury to one member of the family results in financial
impact upon the family as a whole.59 Extraordinary expenses incurred by
parents on behalf of a birth defective child were predictable and certain;
moreover, recovery of such expenses by either the parents or the child,
but not both, was compatible with such a holistic view of a family tort.
Accordingly, the court held that this was applicable in the present and
similar cases – and it followed Harbeson even to the extent that the child
could recover during his majority. All of which is to be applauded in the
interests of justice but which, at the same time, fails to explain under
which particular head the extraordinary expenses were allowed – a lacuna
which, it is suggested, was inevitable once the parents’ wrongful birth
action was barred by statute.60 Be that as it may, that represented the limit
to which the court was prepared to go; ‘sound reasons’, and, in particular,


56
n. 51 above.
57
Heavily influenced, of course, by the Supreme Court decision in Roe v. Wade 93 S Ct 705
(1973) for which see Chapter 2.
58
n. 49 above, at 478 A 761.
59
Relying on the uncompleted case of Schroeder v. Perkel 87 N.J. 53 (1981) in which the
parents’ claim was allowed but that of the child deferred. But how far does the definition
of ‘family’ go? The difficulties are examined, and the extended family rejected, in
Michelman v. Ehrlich 709 A 2d 281 (N.J., 1998) (grandfather claiming for wrongful
birth): Moscatello v. University of Medicine and Dentistry of New Jersey 776 A 2d 847
(N.J., 2001) (claim by siblings).
60
It is interesting that the two dissenting opinions were diametrically opposed – the one
maintaining that the award of extraordinary expenses goes too far, the other that it is
inadequate.
204 The troubled pregnancy

the impossibility of comparing non-existence with an impaired existence,
prohibited the recognition of a claim for general damages.
So where does this rather extensive analysis of the American cases leave
us? It is clear that the wrongful life action remains difficult to uphold so
long as it is argued from the metaphysical or quasi-theological stance and,
whether it be on these or on other more practical grounds, the over-
whelming majority of courts in the United States have refused – and
continue to refuse – to acknowledge such an action. But, at the same
time, we can identify an increasing unease among the American judiciary
that this involves injustice.61 It is an unfortunate, but very real, fact that
current attitudes which increasingly see abortion in terms of family plan-
ning provide little support for counter-arguments based on the affront to
the sanctity of life ‘doctrine’ posed by accepting the wrongful life action.
To admit this attitude to abortion is by no means to approve it – only to
accept that it is now ingrained, at least within the Anglo-Saxon culture.62
A review of the cases shows, increasingly, that negligent deprivation of the
right to terminate a pregnancy involving a disabled child is tortious and the
only question remaining lies in who is to be recompensed, bearing in mind
that the wrongful birth action is about emotions and financial loss while the
wrongful life action concerns pain and suffering. Procanik, in particular,
indicates, even if only by force of circumstances, that this interrelated
approach is open and leaves us wondering if ‘wrongful life’ is anything
more than a rose by any other name. We can now go on to consider
whether developments in other jurisdictions will support this view.

The perspective in the United Kingdom
and the Commonwealth
For reasons that are by no means clear, wrongful life actions have never
been a prominent feature of United Kingdom medical jurisprudence63 – in
fact, so far as I am aware, there never has been an apposite case reported in
Scotland. There are at least two possible answers. In the first place, the
relatively long history of wrongful life cases in the United States was
marked by their unremitting failure; as we have seen, it was not until

61
But see B. Kennedy, ‘The Trend toward Judicial Recognition of Wrongful Life:
A Dissenting View’ (1983) UCLA Law Review 473–501. Kennedy was concerned lest
the wrongful life action led, logically, to the acceptance of neonaticide; the same applies,
however – and even more forcefully – to the acceptance of abortion on fetal grounds.
62
Although, as we have seen in Chapter 2, a remarkable swing of the pendulum may be
emerging in the United States instigated by the South Dakota legislature.
63
Interestingly, we will see that the same applied throughout the Commonwealth. See
n. 139 below.
Wrongful neonatal life 205

1983 that a glimmer of light appeared in that jurisdiction. Secondly, the
first English case, heard in the Court of Appeal in 1982, arose at much the
same time as the legal approaches to the far more common problems of
wrongful pregnancy and wrongful birth were being developed and one
fancies that the courts were disinclined to advance further than need be
into what was already an area of doubtful public morality. By the time
Mary McKay brought her hitherto unprecedented action, her mother
was virtually assured of a successful action for her ‘wrongful’ birth.
Moreover, it was believed that Parliament had already sealed the fate of a
wrongful life action by passing the Congenital Disabilities (Civil Liability)
Act 1976 – a point to which we will return later. Mary’s cause of action,
however, preceded the passing of the Act and the Court of Appeal was, in
fact, being asked to resolve what could have been a difficult jurispru-
dential conflict. It did so with such determination that, Act or no Act of
Parliament, no similar case has since been allowed to proceed. It might
have been supposed, then, that wrongful life was, indeed, a problem of the
past that was scarcely worth reopening. We will see, however, that it
has acquired a new lease of life in the courts of the European Union.64
Despite its comparative antiquity and its currently unchallenged position,
McKay v. Essex Area Health Authority65 may yet return as an important
precedental authority. Moreover, since most of the basic aspects of the
action were well covered, McKay provides a relatively easy ‘Guide to
Wrongful Life’. We ought, therefore, to consider it in some detail.

The case of Mary McKay
Although it was described as a novel cause of action ‘for or against which
there is no authority in any reported case in the courts of the United
Kingdom or the Commonwealth’,66 McKay v. Essex Area Health Authority
occupied the centre of the medico-legal stage of the United Kingdom for a
surprisingly short time. To an extent, this may have been due to the way in
which the case was conducted.
It was not contested that Mary was severely disabled as a result of the
Health Authority’s failure in their vicarious duty to interpret correctly a
blood sample taken from her mother for the presence of rubella infection
and to treat and advise her accordingly – and her mother brought a
separate action for wrongful birth.67 Mary, however, brought her own

64
For which see p. 232 below. 65 [1982] QB 1166, [1982] 2 All ER 771, CA.
66
ibid., per Stephenson LJ at QB 1177, All ER 778.
67
The validity of this claim was not contested and, in the absence of any further report, it is
assumed it was settled in her favour.
206 The troubled pregnancy

action which, following the American example, was, essentially, in two
parts. First, she claimed that, as a result of the combined negligence of the
Health Authority and her general practitioner, she was ‘burdened with
injuries’;68 second, and more importantly in the present context, she
claimed that she had suffered ‘entry into a life in which her injuries are
highly debilitating’.69 These claims were originally struck out by the
Master as disclosing no reasonable cause of action.70 Lawson J at first
instance, however, thought that Mary had a ‘highly reasonable and
arguable cause of action’ and overruled the Master – largely on the
grounds that her real complaint was not that she was born ‘at all’ but,
rather, that she was ‘born with deformities’, and we will see that other
jurisdictions have, since, adopted this position. Thus, the Court of
Appeal’s discussion of the actual case may be said to have been distorted
in that it was directed to determining a relatively narrow point of proce-
dure.71 Nonetheless, their Lordships’ reasons for allowing the appeal,
and, at the same time, refusing leave for a further appeal, were clearly
displayed and are typical of such jurisprudence as existed at the time.
This is expressed in Stephenson LJ’s introduction to his analysis of
Mary’s claim:
I have come, at the end of two days’ argument, to the same answer as I felt inclined
to give the question before I heard argument, namely that plainly and obviously
the claims disclose no reasonable cause of action.72
Seldom can a judicial opinion have been given more clearly and suc-
cinctly – so much so that one feels the answer must be so obvious that the
reasons behind it are not worth pursuing further. However, although
arriving at the same conclusion, neither Ackner nor Griffiths LJJ spoke
with anything like the same certainty and we will see later that times have
changed; we must, therefore, consider the arguments more closely. At
the same time, while Stephenson LJ’s speech provides the most exhaus-
tive opinion – and is the most widely quoted – we must bear in mind the
possibility that it may not be typical of the mind-set of the court as a
whole. Given that proviso, it will be convenient to take the relevant points
in the order that the Lord Justice made them.

68
Statement of claim, para. 14. A claim against the general practitioner on the grounds that
Mary’s injuries resulted from her mother not being treated with anti-viral globulins was
not struck out but is not pursued any further here. Globulin treatment could not reverse
any damage that had already occurred; nonetheless, Ackner LJ, at least, considered that
such an action might well succeed (n. 65 above, at QB 1185, All ER 784).
69
Statement of claim, para. 16(b). 70 Under R.S.C., Order 18, r.19(1).
71
That is, the conditions in which it is right and proper to strike out a claim – an argument
that is not followed up here.
72
n. 65 above, at QB 1177, All ER 779.
Wrongful neonatal life 207

First, he considered the nature of the health carers’ duty to the fetus
and concluded that there was a duty not to injure it – the corollary being
that damages for injury sustained while in the womb were recoverable
when such injury manifested itself after birth.73 It is, then, of course,
central to the argument against allowing an action for wrongful life that
the health carers have not failed in that duty. Mary’s injuries, like those of
any fetus in a similar situation, were caused by the rubella virus; save in
the unlikely event of a mother being negligently advised as to the dangers
of her exposing herself to the virus, a fetus’s right not to be injured before
birth by the carelessness of others will not have been infringed in this way.
In short, the action against the health carers fails simply on the grounds of
causation and this is probably the most difficult of the many hurdles one
has to cross on the way to justifying an action for wrongful life.74
Stephenson LJ’s second argument derives from the first, that is that the
only75 right the disabled child can claim from his or her carers is a right
not to be born disabled – and this means a right to be aborted or killed or,
as he preferred to put it ‘being deprived of the opportunity to live after
being delivered from the body of [his or] her mother’.76 This, in turn, he
considered led inexorably to the question – how can there be a duty to
take away life? – and it is here that the Lord Justice seems, at least to this
writer, to lose some coherence, in particular by confusing a duty to take
life with a legal opportunity to do so.
To some extent, this confusion is of his own making. The text of the
Abortion Act 1967, section1(1)(b)77 at the time legalised the termination
of a pregnancy of less than 28 weeks’ duration if there was ‘a substantial
risk that if the child were born it would suffer from such physical or mental
abnormalities as to be seriously handicapped’. As we have discussed in
Chapter 3, this subsection has been generally interpreted as being drawn

73
ibid., at QB 1178, All ER 779. In fact, the Lord Justice was foreseeing future develop-
ments in which such a cause was argued and sustained. See Burton v. Islington Health
Authority, De Martell v. Merton and Sutton Health Authority [1993] QB 204, [1992] 3 All
ER 833 or, in Scotland, Hamilton v. Fife Health Board 1993 SLT 624.
74
Much of this chapter is derived from J. K. Mason, ‘Wrongful Life: The Problem of
Causation’ (2004) 6 Medical Law International 149–61 where an attempt is made to
overcome the difficulty.
75
This can hardly be taken literally; intuition, if nothing else, tells us that the doctor, be he
or she physician or obstetrician, owes a duty of care to the pregnant woman as a whole –
and this must involve care of her fetus, including protection of that fetus’s interests. The
negligent doctor cannot escape liability to the neonate simply on the grounds of an
absence of duty to the fetus. Fortin has argued strongly, inter alia, that the common
law lays a duty on the doctor to advise the fetus, albeit through his or her mother, of the
risks in being exposed to infection: Jane E. S. Fortin, ‘Is the ‘‘Wrongful Life’’ Action
Really Dead?’ [1987] Journal of Social Welfare Law 306–13.
76
n. 65 above, at QB 1178, All ER 779. 77 Now s.1(1)(d).
208 The troubled pregnancy

in the interests of the fetus’s mother.78 Stephenson LJ, however, stated
that he ‘would prefer to believe that its main purpose, if not its sole
purpose, was to benefit the unborn child’.79 He continued:
[I]f and in so far as that was the intention of the legislature, the legislature did
make a notable inroad on the sanctity of human life by recognising that it would be
better for a child, born to suffer from such abnormalities as to be seriously
handicapped, not to have been born at all.
In so saying, he admits to the health carers’ duty to inform the fetus, albeit
by proxy, of the available options and, thus, acknowledges the fetus’s
right to choose not to accept his or her abnormalities – in other words, as
I will argue later, he has made the case for a fetal action for wrongful life.
To avoid this trap, the Lord Justice pointed out that the doctor is under
no obligation, or duty, to terminate the fetus’s life – or that the fetus has a
legal right to die – simply because he can do to a fetus what he cannot
do to a person who has been born. No-one would deny this – but the
more correct approach is, surely, to ask whether he should accept the
opportunity to accede to the fetal best interests and whether, in failing to
consider that opportunity, he becomes liable to the resulting neonate.
Stephenson LJ’s riposte is now so well-known as scarcely to bear
repetition:
To impose such a duty towards the child would, in my opinion, make a further
inroad on the sanctity of human life which would be contrary to public policy. It
would mean regarding the life of a handicapped child as not only less valuable
than the life of a normal child, but so much less valuable that it was not worth
preserving.80

Which is a sentiment that, as we have already discussed, many would
endorse. But, taken in conjunction with the Abortion Act 1967, does it
make for good law?
Stephenson LJ’s final reason for rejection of Mary’s claim rested on
the far more pragmatic analysis of the nature of the injury and the damage
she had suffered. Having rejected the proposition that the health carers
were, in fact, liable to her in respect of her injuries, he concluded that the
only loss for which they could be held responsible was the difference
between her disabled condition and non-existence. Since we can know
nothing of the latter, the conclusion was that such an assessment was
impossible.

78
The major authority for this seems to be Glanville Williams, Textbook of Criminal Law
(2nd edn, 1983) but it is accepted without comment by Kennedy and Grubb Medical
Law, n. 29 above, at 1425.
79
n. 65 above, at QB 1179, All ER 780. 80 ibid., at QB 1180, All ER 781.
Wrongful neonatal life 209

Nonetheless, the Lord Justice was clearly not entirely happy with his
conclusions and, again, it is instructive to quote him in full:
The defendants must be assumed to have been careless. The child suffers from
serious disabilities. If the defendants had not been careless, the child would not be
suffering now because it would not be alive. Why should the defendants not pay
the child for its suffering? The answer lies in the implications and consequences of
holding that they should. If public policy favoured the introduction of this novel
cause of action, I would not let the strict application of logic or the absence of
precedent defeat it. But as it would be, in my judgment, against public policy
for the courts to entertain claims like those which are the subject of this appeal,
I would for this reason, and for the other reasons which I have given, allow
the appeal.81

And one cannot avoid the uncomfortable feeling that this may be yet
another example of how judicial morality has been allowed to cloud
judicial principle across the whole field of the troubled pregnancy.
Even so, Stephenson LJ was fully supported by his fellow judges, in
particular Ackner LJ who, again, could not accept that, absent specific
legislation on the point, the common law would ever include an obliga-
tion to terminate the life of a person within the envelope of a duty of care
to that person, whether or not in utero: ‘Such a proposition runs wholly
contrary to the concept of the sanctity of human life.’82 The difficulty
here, of course, is that the same could be said of the Abortion Act 1967 in
general while, in particular, it involves an interpretation of section 1(1)(b) –
as it then was – that is diametrically opposed to that of Stephenson LJ.
Moreover, although it was not so stated at the time, it is clear that any
such argument must also apply to the mother’s claim for wrongful birth
and I will consider this again at the end of the chapter. Ackner LJ was,
therefore, almost obliged to seek an alternative ‘root of the whole cause
of action’ and he found it in the impossibility of comparing the value of
non-existence with that of existence in a disabled state. No comparison
was possible and therefore no damage could be established which a court
could recognise.83 He was supported in his selection of this as the most
compelling reason to reject the action by Griffiths LJ – ‘the common
law does not have the tools to fashion a remedy in these cases’, a line of
thought that is strangely pre-emptive of much of the reasoning in the

81
ibid., at QB 1184, All ER 784.
82
Ackner LJ specifically rejected Templeman LJ in Re B, n. 2 above, as authority to the
contrary and was surely right in so doing. The words of Lord Donaldson MR may be
recalled: ‘I have to cavil at the use of such an expression as ‘‘condemned to die’’ and ‘‘the
child must live’’ in Templeman LJ’s judgment’, in Re J (a minor)(wardship: medical
treatment) [1991] Fam 33, [1990] 3 All ER 930.
83
n. 65 above, at QB 1189, All ER 787.
210 The troubled pregnancy

wrongful pregnancy case of McFarlane that we have discussed at length
in Chapter 4.
Given such specificity, however, we must assume that the ‘impossible
assessment’ factor provides the ratio of McKay and, because of its negative
nature, this is unfortunate. While many problems may be difficult or very
difficult to solve, very few solutions are irrevocably beyond the capacity of
human ingenuity – in short, we cannot, or ought not to, deny the existence
of a cause of action because we find it hard to redress. Meantime, as
something of an envoi, I return to Stephenson LJ to quote what may, in
the end, constitute the most significant aspect of his opinion:
though the judge was right in saying that the child’s complaint is that she was born
with deformities, without which she would have suffered no damage and have no
complaint, her claim against the defendants is that they were negligent in allowing
her, injured as she was, in the womb, to be born at all, a claim for ‘wrongful entry
into life’ or ‘wrongful life’,84
a statement that must, once again, leave us wondering – as we were
following the review of the American cases85 – if the whole discussion of
wrongful life is anything much more than a war of words, or a simple
problem of semantics. An obvious inference to be derived from Lord
Justice Stephenson is that the stumbling block to the action lies in the
concept of the wrongfulness of being alive. Most of our conceptual and
practical difficulties fade away if we concentrate on the wrongfulness of
being injured and, again, I will explore this avenue later in the chapter.

The Congenital Disabilities (Civil Liability) Act 1976
We must also consider the significance of the wrongful life action in
relation to statute law. Largely as a result of the unsatisfactory outcome
of the litigation following the thalidomide disaster,86 the status of the tort
related to pre-natal injury had already been examined in depth by the time
McKay came to be tried87 but no definitive action had been taken.
This had to await the passing of the Congenital Disabilities (Civil
Liability) Act 1976 the terms of which, of course, largely depended on
the Law Commission’s Report. Mary McKay’s birth preceded the Act

84
ibid., at QB 1179, All ER 780. 85 At p. 204 above.

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