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86
S v. Distillers Co. (Biochemicals) Ltd [1969] 3 All ER 1142, [1970] 1 WLR 114. As is
probably well-enough known, a number of pregnant women treated with thalidomide for
the relief of ˜morning sickness™ gave birth to children with severe limb deformities. The
action resulted in an agreed compromise payment in which allegations of negligence were
withdrawn.
87
Law Commission Report on Injuries to Unborn Children (1974, Law Com. No. 60)
(Cmd. 5709).
Wrongful neonatal life 211

which was, however, passed before her action was heard. If, then, the Act
excluded the wrongful life action, McKay was a nine-days wonder which,
in the absence of further legislation, would never be repeated. Put another
way, the foregoing discussion has been a waste of everyone™s time “ and this
may, indeed, have been in the minds of the Lords Justices at the hearing
and may, at the same time, account for their evident intention to dispose of
the case with decent haste. In point of fact, I do not think we have to reach
such a depressing conclusion. In the first place, many, including myself,
would hold that the fetus ought to have such an action available “ even
though establishing its base may involve a degree of philosophical and legal
legerdemain. Second, we will see that the courts of some jurisdictions are
now prepared to allow the action. And, third, it is at least arguable that the
1976 Act does not, truly, dispose of the matter.
It is true that the Law Commission™s inclinations were clear. Paragraph
89 of the Report says:

We do not think that, in the strict sense of the term, an action for ˜wrongful life™
should lie . . . To justify an action in logic, therefore, it is necessary to argue that
the child would have been better off had he never existed. Nor would it be easy to
assess his damages on any logical basis for it would be difficult to establish a norm
with which the plaintiff in his disabled state could be compared . . . We have given
this problem the most careful consideration and have not, we think, been unduly
influenced by these considerations. Law is an artefact and, if social justice requires
that there should be a remedy given for a wrong, then logic should not stand in the
way. A measure of damages could be artificially constructed . . . [W]e are clear in
our opinion that no cause of action should lie [which arises out of medical advice].
Such a cause of action, if it existed, would place an almost intolerable burden on
medical advisers in their socially and morally exacting role. The dangers that
doctors would be under subconscious pressure to advise abortions in doubtful
cases through fear of an action for damages is, we think, a real one.

In many ways, there is a sense of fin de siecle about this statement. With
`
abortions in England and Wales now running at some 180,000 per year it
is difficult to think of advising in favour of termination of pregnancy as
imposing an intolerable moral burden on doctors. Moreover, it is unreal
to use the abortion argument against a wrongful life action without, at the
same time admitting that it is also central to the wrongful birth action “
which is, itself, acceptable. For present purposes, however, the most
important phrase in the above quotation lies in the words ˜in the strict
sense of the term™ which, again, implies that the distinction to be made
between the possible actions in negligence depends on the wording of the
plea. The problem here is that we are faced with two hard and contra-
dictory choices. On the one hand, we can attempt to find a place for direct
negligence in fetal care within the standard scenario of a wrongful life
212 The troubled pregnancy

action and, although, as we will see, it is not impossible to do so, this is a
difficult task. The alternative is to define and isolate the wrongful life
action as being one in which damage has occurred for which no-one is
liable “ and we are left wondering which of these scenarios identifies the
˜strict sense™ of the term.
Section 1(2)(b) of the 1976 Act defines an antenatal occurrence for
which the doctor may be answerable to the resultant child as one that,
inter alia:
affected the mother during her pregnancy, or affected her or the child in the
course of its birth, so that the child is born with disabilities which would not
otherwise have been present.
Ackner LJ stated without qualification:
Subsection (2)(b) is so worded as to import the assumption that, but for the
occurrence giving rise to a disabled birth, the child would have been born normal
and healthy “ not that it would not have been born at all. Thus, the object of the
Law Commission that the child should have no right of action for ˜wrongful life™
is achieved.88
In view of the fact that his fellow judges agreed with him,89 it is clearly
treading dangerous ground to question their reasoning. Nonetheless, try as
I will, I cannot see it as being anything other than a non sequitur. Section
1(1) of the 1976 Act refers to a person (other than the child™s mother) who,
under the section, is answerable to the child in respect of the occurrence
and we have seen how difficult it will be to attribute causation to the health
carers in wrongful life cases “ indeed, it is a major part of the argument
against wrongful life that it cannot be done. Subsection (2)(b) is concerned
only with recognisable injury to the fetus by a responsible person and
simply has no place in the melodrama if there is no villain. In short, the
1976 Act is irrelevant to the wrongful life action as it is commonly understood.
Fortin90 has suggested that, in interpreting the Act, the Court of Appeal
in McKay was unduly influenced by the Law Commission™s expressed
intentions and she goes on to argue that section 4(5), which states that the
Act replaces any law in place before its passing, would not necessarily
prohibit bringing a case of wrongful life under the common law.91

88
n. 65 above, at QB 1186“7, All ER 786.
89
ibid., Stephenson LJ at QB 1178, All ER 779, Griffiths LJ at QB 1191, All ER 789.
90
n. 75 above. I should point out that she reaches the same conclusion as I have done as to
the significance of the 1976 Act. Similar doubts have been expressed more recently: Anne
Morris and Severine Saintier, ˜To Be or Not to Be: Is That the Question? Wrongful Life
and Misconceptions™ (2003) 11 Medical Law Review 167“93.
91
It is to be noted that the 1976 Act does not run to Scotland where a neonatal right to sue
for injuries sustained in utero has always been accepted.
Wrongful neonatal life 213

It is also difficult not to see the creation of section 1A within the 1976
Act by way of the Human Fertilisation and Embryology Act 1990, section
44, which establishes a neonatal right to sue in the event of injury resulting
from negligent acts or omissions, including embryonic selection, during
the course of assisted reproduction, as going very close to acknowledging
a wrongful life action “ at least in a specific situation.92 Such arguments,
however, do little save add confusion to an already confused concept. In
my view, the 1976 Act is concerned to establish a tort of negligence
affecting the unborn child “ something that was essential in view of the
doubt imposed by the legal rejection of a fetal persona as discussed in
Chapter 2. As it stands, it is not there to rule out an action for wrongful life
and attempts to read it as such are no more than extrapolations. There
may still be a need for such an action and, if the provision of a remedy
requires an ˜artificial construct™ in the form of identifying a form of
negligence, then so be it.93

Wrongful life in Australasia
As is so often found in the field of medical jurisprudence, some of the
most helpful discussions of the issues stem from the Antipodes and this is,
perhaps, most evident in the field of reproductive medicine. While some
judicial decisions may appear to many to be unfeeling “ and the decision
in Cattanach v. Melchior,94 which we have discussed in Chapter 4, may be
cited as one which attracted maximum opposition on this score “ others
will see the Australian and New Zealand courts as dragging the relevant
jurisprudence into the twenty-first century. Perhaps the most interesting
characteristic of the Australasian decisions is the degree of polarisation of
the opposing judicial opinions such as we have seen in Cattanach v.
Melchior. Much the same is to be found in the important case of Harriton v.
Stephens95 which provides the most recent, and possibly the most exhaus-
tive, review of wrongful life actions throughout the Commonwealth
jurisdictions. The life of an author in the field of medical law is, indeed, a
hard one for, once again, we have a case in which the picture has completely
changed since the relevant chapter was first flagged as completed. Thus,
when heard in the Court of Appeal of New South Wales, Harriton appeared

92
Indeed, it has been said that, in doing so, Parliament has clearly recognised a ˜wrongful
life™ claim. Kennedy and Grubb, Medical Law, n. 29 above, at 1552. We return to the
1976 Act with reference to the Australian case of Waller at p. 222 below.
93
The 1976 Act clearly operates once negligence by an individual is established. See n. 42
above.
94
(2003) 199 ALR 131.
95
Harriton v. Stephens; Waller v. James; Waller v. Hoolahan [2004] NSWCA 93.
214 The troubled pregnancy

to bring the wrongful life action a considerable step nearer to acceptance.
By the time the case had gone through the High Court of Australia, how-
ever, it represented its death-knell “ at least in Australia. Nevertheless, the
case is so important to this chapter that, before moving on to the definitive
judgment, it will still be helpful to consider the Court of Appeal stage of
Harriton “ even if for no other reason than to introduce the dissenting
opinion.
On the face of things, the facts of the conjoined cases of Harriton and
Waller are fairly standard, although we will see later that there were
significant differences that require us to reconsider Waller as a distinct
entity. Alexia Harriton and Keeden Waller were both born with severe
disabilities “ the former resulting from the maternal rubella syndrome
and the latter from paternally transmitted anti-thrombin 3 (AT3) defi-
ciency. Each asserted that their suffering and consequent financial liabil-
ity would not have occurred absent a failure to provide their mothers with
sufficient information on which to found a choice that ensured they
would not have been born. The judge at first instance held that the health
carers owed no such duty to their mothers and that, consequently, the
children could have no cause of action against them.96 The children
then lost their appeal “ but only by a 2 to 1 majority with the President
of the Family Division, Justice Mason, taking the dissenting view.
The majority opinion was based on an interesting mix of both well
rehearsed and novel arguments. Amongst the former were recourse to the
compensatory principle which, essentially, states that the objective of the
successful action in tort is to restore the pursuer to the same position as he
or she would have occupied had not the wrong been sustained; this, of
course, must, in the context of personal injury, be qualified by some such
phrase as ˜insofar as money can do so™. Ipp JA discussed the history of this
principle and its application to the wrongful life action in great depth and
he quoted many of the many authorities to which attention has already
been drawn. In the final analysis, he concluded that:
[W]ithout recourse to considerations of policy that compel a departure from both
the compensatory principle and the principle that damage is the gist of the cause of
action in negligence, the appellants™ arguments must fail.97
This, in turn, depended on the widely held belief that it is impossible to
use non-existence as a comparator with disabled existence:


96
For an admirable review of the topic in the light of the first instance decision in Harriton
and related cases heard by the same judge, see Penelope Watson, ˜Wrongful Life Actions
in Australia™ (2002) 26 Melbourne University Law Review 736“49.
97
n. 95 above, at [279].
Wrongful neonatal life 215

No amount of imagination and broad-axe wielding can conjure up a basis for
assessment when no such basis exists or is known to human ken.98
Basic to the compensatory principle, however, are, first, the identification
of the loss which has been suffered and, second, a decision as to whether a
duty was owed by the defender in respect of that kind of loss. As to the
former, the court agreed with the trial judge “ and much of the previous
international jurisprudence “ that, given it was impossible to say that
non-existence was preferable to a life with disabilities, there was no
identifiable damage sustained by the children.99 Some of the reasoning of
the majority as to the latter is, however, novel and is interesting in that,
once again, it demonstrates the recourse to moralism which has been,
perhaps unsurprisingly, such a feature of the judicial approach to all those
aspects of the ˜troubled pregnancy™ which we have discussed thus far.
Many of the relevant dicta of Spigelman CJ have their origin in the distant
past,100 and I have extracted some of those that appear significant in
the present context:
The delineation of legal duties has never been derived from an exclusively
legal analysis (at [18]) . . . Decades of decision making which employed only
legal concepts has created a situation in which there is a false appearance of
intellectual autonomy (at [19]) . . . The most important aspect of the ethical
basis for legal duties that have been recognised by the law of negligence is that a
duty must reflect values generally . . . held in the community . . . These values
change and the courts must adapt to new community standards (at [20]).

So far, so good, but the Chief Justice went on to say (at [21]) that:
In my opinion, the duty asserted by the Appellants should not be accepted as it
does not reflect values generally, or even widely, held in the community.

It is, here, that one begins to wonder whether the judge may not be passing
off his own morality as a legal fact. How, one wonders, can he possibly
know that this is true? “ we will return to this aspect of this case later in the
chapter.101


98
ibid., at [269].
99
See Spigelman CJ, ibid., at [43]. The emphasis in the original was intended to emphasise
that the problem did not arise in the case of an action by the parents. There was,
therefore, no inconsistency between success of a parental claim and failure of one on
behalf of the child (see [44]).
100
One is reminded of Lord Coleridge LCJ in R v. Instan [1893] 1 QB 450: ˜It would not be
correct to say that every moral obligation involves a legal duty, but every legal duty is
founded on a moral obligation™ (at 453).
101
There are echoes here of Lord Steyn™s commuter on the London underground in
McFarlane (see p. 121 above) who, the commentators generally agreed, may not be
the best lawmaker.
216 The troubled pregnancy

This is but one aspect of the majority decision that might be considered
unhelpfully negative in character. The Chief Justice, however, then went
on to say (at [24]) of the action by the child:
The assertion by the child that it would be preferable if he or she had not been
born raises ethical issues of the same character as those involved in the debate over
euthanasia . . . [T]he issues are highly contestable and are strongly contested.
There is no widely accepted ethical principle. The law of negligence should not,
therefore, recognise a legal duty to the child.
It may well be said that the court is, here, moving into the sphere of
political decision-making which is the remit of Parliament. Nevertheless,
it is difficult to see why the absence of consensus on the matter should
prohibit the court from seeking an answer. Moreover, this didactic con-
clusion closes the door on the alternative approach that the patient is
entitled, even in surrogate fashion, to refuse any form of medical manage-
ment “ a matter which is discussed further in the next chapter.102 And as
a final example of negative decision making, both the majority opinions
contended that it never has been the law that a person who suffers
foreseeable harm attributable to the negligence of another should always
receive compensation103 “ an attitude that seems to lead to the circular
conclusion that there has been no negligence if a loss is declared to be
irrecoverable.104
Insofar as an action for wrongful birth is accepted almost universally
and one for wrongful life is virtually always refused, it is integral to the
decision in Harriton, and to those in all other cases which have followed
the same line, that the conditions in the two actions are different both as
to the duty of care “ as between duty to the fetus and its mother “ and as to
responsibility for the damage done.105 This is one reason why the dis-
senting opinion of Mason P was so important to what was, in effect, a
precedental case in Australia.

102
Admittedly, this was taken up by Ipp JA (n. 95 above, at [313] et seq.) and was
discounted on the grounds that the interest in a wrongful life case ˜does not concern
the issue whether life should be preserved; the contrary is the case™. Note that it is part of
the judge™s argument that it is the mother™s interest that is served by termination ([296]).
But before extrapolating this to UK cases, one must note that, in the absence of an
Abortion Act, the law in New South Wales restricts lawful abortion to the grounds of
maternal well-being ([312]).
103
See, in particular, Ipp JA at [248].
104
And Ipp JA, himself (at [250]), drew attention to the consequent difficulties of reconcil-
ing the decisions in McFarlane and Cattanach which we have discussed in Chapter 4.
105
As put by Stretton, n. 4 above: ˜[L]iability in wrongful life depends crucially on whether
the doctor™s conduct can cause physical damage to the plaintiff.™ The difficulties
imposed by the uncertainty on this point are well illustrated in the Canadian case of
McDonald-Wright v. O™Herlihy [2005] OJ No.1636 (see n. 115 below).
Wrongful neonatal life 217

Justice Mason started from the premise that the perceived dichotomy
of interests between mother and fetus is a false one. The negligence of the
health carers lay in their failure to give the mothers advice with which they
would have agreed to terminate the pregnancies. To do so would have
been in their best interests and in the best interests of the children “ this
being made inherently clear by their bringing the action.106
Mason P emphasised the central importance of this causal connection
by decrying the tendency to describe the child™s claim as asserting a ˜right
to be killed™. This, he considered, was getting ˜the real issues off to a false
start™107 “ in particular, by raising the spectre of having to compare the
value of non-existence with that of existence in a disabled state, an issue
that he considered to be one of the two main arguments used against
recovery in ˜wrongful life™ claims.108
The first of these he identified as the assertion that life, itself, cannot
be a legal injury109 and it is noteworthy “ and perhaps inevitable “ that
he drew the main support for this contention from the highly emotive
dissenting speeches in Cattanach.110 Justice Mason, however, held that
there was no conceptual difference between the actions for wrongful
pregnancy, wrongful birth and wrongful life; all were triggered by the
same mechanism “ that is, the creation of life. It was irrational to recognise
the second and to refuse the third; indeed, if any distinction was to be
made, the child™s claim should be regarded as superior to that of the
parents. As to the second argument, the near impossible task of compar-
ing non-life with a disabled condition had, as we have already noted, been
cited by many judges as being one that was beyond the remit of the law.
Mason P, however, considered this to be looking at the problem from the
wrong aspect. Assuming that the children could express their complaint,
they would, he thought, do so not in a comparative sense but, rather, with
direct reference to their current and future suffering and the needs thus

106
Which seems to put paid to the commonly voiced argument that wrongful life actions
should not be accepted because of a potential conflict between maternal and fetal
interests.
107
Quoting, in support, the early and important paper by Harvey Teff, ˜The action for
˜˜wrongful life™™ in England and the United States™ (1985) 34 International and
Comparative Law Quarterly 423“41.
108
Following, to a large extent, the opinion in the very significant US case of Becker v.
Schwartz 386 NE 2d 807 (N.Y., 1978).
109
Interestingly, Mason P attributed this ˜question-begging conclusion™ to a failure to
distinguish between the early US cases brought for having been born into socially
disadvantaged conditions (for which, see Zepeda v. Zepeda 190 NE 2d 849 (Ill., 1963),
n. 6 above) and those concerned with genetic disease. The former, he thought, should be
reclassified as ˜dissatisfied life™ claims and should be seen as quite separate from the
latter which involve medical negligence.
110
Cattanach v. Melchior (2003) 199 ALR 131 discussed at p. 126.
218 The troubled pregnancy

created.111 Moreover, Mason P pointed out that we have no problem
with comparing life with non-life when adjudicating futility of treatment
of the disabled, insentient neonate.112
What is to my mind the President™s crucial conclusion lies in his
analysis of the duty of care to the fetus that is undertaken by the doctor
and, hence, his or her liability for the neonatal disabilities. There is no
better approach than to quote him verbatim (at [116]):

[T]here is no reason in principle why the medical practitioners™ negligence in the
advice and treatment they gave the mothers cannot sound in damages being
awarded to the appellants [i.e. to the children]. The appellants were born
alive and their disabilities were in one sense caused by the negligence of the
respective doctors, who omitted to give advice and treatment to the mothers
that would have prevented the suffering presently endured by the appellants.113

This reasoning is very comparable to that adopted by the French and
Dutch courts which, as we will see, have, possibly, set a trend for the
acceptance of the wrongful life action. Even so, it is interesting to note
that, despite the power of each of the arguments that I have selected above
by way of illustration, Mason P summarised his dissent as resting mainly
on the consistency that he saw between the parents™ admitted cause of
action and the children™s putative cause of action [166].114 We may, here,
usfully revert to Stephenson LJ in McKay who regarded the importance of


111
I have to admit my fancy for the parallel with the prophet Job (Job 3:3). ˜Like Job, [the
children] might curse the day they were born or conceived, but that would really be a
poetic exclamation about their present plight™ (n. 95 above, at [156]). Justice Mason™s
argument, here, is very comparable to my plea for an action for ˜diminished life™ to which
I refer at p. 237.
112
Discussed in detail in Chapter 7. For the present, I need only say that, in common with
Justice Mason, I have long posited that to deny the fetus a preference for non-existence is
to deny him or her a right to choice, albeit a surrogate choice, that is recognised as being
available to a similarly affected neonate “ e.g. J. K. Mason, Medico-Legal Aspects of
Reproduction and Parenthood (Aldershot: Ashgate, 2nd edn 1998) at 164.
113
The case law quoted by which to infer that a plaintiff need not to have been in existence
as a legal personality at the time of an ˜injury™ in order to bring an action included Watt v.
Rama [1972] VR 353, X and Y (by her tutor X) v. Pal (1991) 23 NSWLR 26 and the UK
case Burton v. Islington Health Authority [1993] QB 204 and we will see at the end of this
chapter that there are other important Scots cases in point. To use them as precedents in
the present context, however, means that one must accept that birth itself can be an
injury.
114
See, also, n. 8 above. In passing, it should be noted that the overlap and duplication
between the two actions pose more than academic problems. The very practical question
of the distribution of damages must also be considered insofar as, in the absence of special
considerations, damages that are available to the parents alone will generally cease to be
payable when the child reaches majority; damages payable to the child by way of a
wrongful life action will, however, be payable so long as his or her disabilities persist “
which, in the most likely scenario, means until his or her death.
Wrongful neonatal life 219

the wrongful life action as being ˜somewhat reduced™ by the existence of
the mother™s claim which, if successful, would give the child some com-
pensation in money or in care. The implication must be that the Lord
Justice saw the two actions as being, at least, complementary and cer-
tainly directed to a common end.
Indeed, as has been apparent throughout, there is a nagging impression
that the distinction between the wrongful birth and wrongful life action is
an artificial construct. Each action has the same ultimate objective “ that
is, recompense for a wrong done “ and the wrong in each case lies in a
similar failure to advise the pregnant woman and her fetus of their available
choices. The interweave of the principles involved is such that, when Lax J
began her hearing of the, then, novel Canadian trial of McDonald-Wright v.
O™Herlihy,115 she announced that she was doing so on the understanding
˜that the underlying legal issues of ˜˜wrongful birth™™ and ˜˜wrongful life™™
were relevant to damages, and only to damages™. Effectively, she decided
that no different considerations applied as to the duty of care in the two
causes of action “ ˜it is difficult even to conceptualize the existence of
two separate duties owed by a radiologist or an ultrasound technologist
to a mother and her fetus™.116
In general, Justice Mason™s opinion in Harriton was so robustly
expressed and so grounded in principled law that it seemed very likely
that the majority decision to the contrary would be overturned if it was
further appealed. Such prescience was, however, again wide of the mark
for, in the event, a seven-judge bench dismissed the appeal in the High
Court of Australia by a majority of 6 to 1.117
Although the approach of the two courts differed,118 the New South
Wales Court of Appeal being concerned mainly with the basic question of
whether the damage as alleged was capable of being recognised for
the purposes of judicial proceedings, the High Court did not “ and, in
truth, probably could not “ say much that was entirely original. The truly
significant features were, first, the relative exclusion of emotive language
and, second, the clarity with which the opposing arguments were pre-
sented. For these reasons, coupled with the fact that most of the discus-
sion as to the general concept has already been detailed, it is proposed
merely to outline the opposing views and, thereby, provide something of a
summary of the wrongful life debate.


115
[2005] O.J. no. 1636.
116
n. 115 above, at 29. The case was one of neural tube defect of the ˜missed ultrasound™
class at 22 weeks™ gestation.
117
Harriton v. Stephens [2006] HCA 15.
118
It is to be remembered that there was no trial, as such, of the case.
220 The troubled pregnancy

Crennan J made the following points, among others, for the majority:119
* The ultimate conclusion is that the nature of the damage alleged in a

wrongful life case is not such as to be legally cognisable in the sense
required to found a duty of care. That conclusion, in fact, makes it
unnecessary to address any other aspects of the suit (at [243]);
* The damage alleged will be contingent on the free will, free choice and

autonomy of the mother (at [248]); the woman cannot be required or
compelled to have an abortion;
* The possibility of the child suing its mother for the fact of its existence

is to be avoided (at [250]);
* A comparison between a life with disabilities and non-existence for the

purposes of proving actual damage is impossible (at [252]);
* A duty of care cannot be stated in respect of damage which cannot

be proved and which cannot be apprehended or evaluated by a court
(at [254]);
* To allow a disabled person to claim his or her own existence as

actionable damage is not only inconsistent with statutes preventing
differential treatment of the disabled but it is also incompatible with
the law™s sanction of those who wrongfully take a life (at [263]);
* To posit that the real test is to compare an actual life with disabilities

with a notional life without disabilities “ or a ˜fictional healthy person™ “
depends on a legal fiction; life without special pain and disabilities was
never possible for the appellants (at [266] and [270]);120
* A need for corrective justice “ if such is relevant when no-one is found

responsible “ cannot be determinative of a novel claim in negligence
(at [275]).
In short: ˜Life with disabilities™, said Crennan J, ˜like life, is not actionable™.
Against this, we have the very powerful argument put by Kirby J in
the minority. The opinion, well-structured as it is, ultimately does little
more than replicate that of Mason P in the court below “ and, in doing so,
confirms most of the points I have been trying to establish in the course
of this chapter. Nevertheless “ and, again, at the major risk of being
repetitious “ I think it is only fair to treat his speech in the same way as
that of Crennan J so that we can have a wide picture of the debate as it


119
In the event, three of the concurring judges made no independent speeches but expressly
concurred with Crennan J.
120
This ˜fiction™ (already raised by Mason P “ see n. 112 above) also provided the rationale
for recognising a legal basis for damages in the ground-breaking Israeli case of Zeitzoff v.
Katz [1986] 40(2) PD 85. See Amos Shapira, ˜˜˜Wrongful Life™™ Lawsuits for Faulty
Genetic Counselling: Should the Impaired Newborn be Entitled to Sue?™ (1998) 24
Journal of Medical Ethics 369“75.
Wrongful neonatal life 221

stands in its most recent exposition. Thus, Kirby J™s counter argument
runs along these lines:
* As to causation in general, the child would not have been born had it

not been for the respondent™s negligence; consequently, the suffering,
expense and losses of which she now complains would have been
avoided. ˜True, the respondent did not give rise to, or increase, the
risk that the appellant would contract rubella. However, he did, through
his carelessness, cause the appellant to suffer, as she still does, the
consequences of that infection.™121
* The duty owed by the health carers to take reasonable care to avoid

causing pre-natal injury to a fetus is sufficiently broad to impose a duty
of care on the respondent in this case (at[71]);
* To deny the existence of a duty of care amounts, in effect, to the

provision of an exceptional immunity to a tortfeasor “ the common
law resists such an immunity (at [72]);
* A mere potential for a conflict of maternal/fetal duties will not prevent a

duty of care arising (at [74]);
* The respondent owed the appellant a relevant duty of care (at [77]);

* As to the ˜unquantifiable™ nature of the damage, the courts have had no

difficulty in assessing these in relation to the parallel parental claims,122
nor as to special damages “ and, as a result, the ˜impossible compar-
ison™ argument also falls away (at [87]);123
* It is wrong to deny compensation where resulting damage has occurred

˜merely because logical problems purportedly render that damage
insusceptible to precise or easy quantification™;124
* Both ˜general damages for proved pain and suffering and special

damages for the needs created by the negligence of the medical practi-
tioner in respect of a foetus in utero are recoverable in an action
brought by or for that child™ (at [109]).

121
n. 117 above, at [39]. Kirby J also drew attention to the earlier article by Anthony
Jackson, ˜Wrongful Life and Wrongful Birth. The English Conception™ (1996) 17
Journal of Legal Medicine 349“81.
122
ibid., at [80], quoting J. G. Fleming, The Law of Torts (London: LBC Information
Services, 9th edn 1998) at 184.
123
To quote Kirby J in full: ˜It follows that, by ordinary principles, at least special damages
are recoverable in a case such as the present. There is no difficulty in the computation of
such damage. In my view, this application of basic principles of law discloses starkly that
the impediment to recovery is founded in policy considerations, not law.™ (at [93]).
124
Referring to Pollock J in Procanik, see p. 202 above. See also the recent English case
Chester v. Afshar [2005] 1 AC 134, [2004] 4 All ER 587, referred to again below at
n. 192. As was said in a paper published while this book was in press: ˜Logic may have
demanded the outcome reached by the High Court in Harriton, but fairness demands
another™: Alice Grey, ˜Harriton v. Stephens: Life, Logic and Legal Fictions™ (2006) 28
Sydney Law Review 545“60 at 560.
222 The troubled pregnancy

Kirby J also summarily “ and, to my mind, successfully “ disposed of many
of the supposed policy arguments against recovery for ˜wrongful life™. Of
these, I would highlight, particularly, his contention that it is absurd to
suggest that the action implies a duty to kill the fetus “ which would, in any
event, be incompatible with a woman™s right to decline a termination. The
duty is no more than to detect, and warn of, the foreseeable risks to
the fetus and to provide advice and guidance to the mother.125 And, as a
corollary of paramount importance:
This argument against allowing actions for wrongful life [that ˜life™ cannot be a
legal injury] depends upon a false categorisation of such actions. It is not life, as
such, which a plaintiff in a wrongful life action claims is wrongful. It is his or her
present suffering as a life in being.126
I admit that, as with the opinion of Mason P in the New South Wales
court, I find Kirby J™s arguments so persuasive that it is difficult to
understand how it is that they stand alone in the Commonwealth juris-
dictions. I conclude that, as Kirby J himself suggested, the words ˜wrong-
ful life™ implicitly denigrate the value of human existence and that, as a
result, that label has made judges reluctant to afford remedies in such
cases.127
Be that as it may, the most novel and, to my mind, most interesting
features of the High Court hearing result from the fact that an appeal in
Waller v. James128 was heard consecutively to that of Harriton. The argu-
ments deployed were repetitious and the appeal was, again, dismissed by
a majority of 6 to 1. But were the acts so similar as to justify what was close
to a conjoined hearing?
First, there were two main respondents129 in Waller who stood in
distinct relationships to the appellants “ Dr James who was a specialist
in the management of infertility and Dr Hoolahan who was the obstetri-
cian responsible for Mrs Waller™s prenatal care. The Wallers™ general
practitioner referred the family to the former doctor, remarking at the
time that Mr Waller suffered from the dominant genetic abnormality
known as anti-thrombin 3 deficiency “ a condition which predisposes to
intravascular clotting. Mr Waller was not tested for this condition
although he was investigated to determine whether there was a genetic

125
n. 117 above, at [112]. See also confirmation in McKay v. Essex AHA, n. 65 above per
Griffiths LJ at QB 1192, All ER 790.
126
n. 117 above, at [118]. 127 ibid., at [13].
128
Waller v. James; Waller v. Hoolahan [2006] HCA 16.
129
In fact, there were three “ Dr James was working in conjunction with Sydney IVF Pty
Ltd. In addition to the action for ˜wrongful life™, Dr Hoolahan was sued in respect of his
management of the pregnancy which was a distinct issue and is of no concern for present
purposes.
Wrongful neonatal life 223

reason for his spermatic abnormality and Mrs Waller was later screened
for the carriage of a Down™s syndrome child. In the end, Mrs Waller was
impregnated with an embryo formed in vitro by way of intra-cytoplasmic
sperm injection of her own eggs. Thus, it was agreed in the statement
of facts that, if the couple had been properly advised, they could have
deferred the IVF procedure until pre-implantation genetic tests for
AT3 deficiency were available or they could have opted for donor insemi-
nation “ this being, essentially, the basis for the case against Dr James.
In any event, given the way that the child, Keeden, had been conceived,
there was a 50 per cent chance that he would be affected; thus,
Mrs Waller could have arranged for a lawful termination of pregnancy
had she been informed of the risk “ and this founded part of the case
against Dr Hoolahan.130 The problems as to whether or not a duty of care
was owed to the child have already been discussed in sufficient depth both
in relation to Harriton and to other relevant cases.131 The main concern at
this point, however, is with causation.
Crennan J who, again, gave the major speech for the majority, consi-
dered that the decision in Harriton settled the case against Dr Hoolahan
and there can be few who would doubt that this is the necessary con-
clusion. However, she also considered that it disposed of the case against
Dr James and Sydney IVF and, while the judge herself clearly recognised
the differences between the two,132 this conclusion is far less clear. As
Kirby J said in his minority opinion: ˜Indeed, the evidence pointing towards
the existence of the requisite causal relationship is arguably stronger in this
case than in Harriton in relation to [Dr James and Sydney IVF].™133
And this must, surely, be so. Nobody can say that Dr Stephens was
responsible for Alexia™s infection with rubella; equally, of course, it can-
not be said that Dr James was responsible for Keeden™s genetic mutation
However, Sydney IVF were responsible for choosing to use Mr Waller™s
sperm. Admittedly, they could not, at the time distinguish between
normal and abnormal spermatozoa for this particular mutation134 but


130
n. 128 above, at [76].
131
It is true that there was a significant difference in that Keenan™s parents were bringing
their own case whereas the Harritons were time barred. To that extent, therefore
Keeden Waller was supported by Mason J™s main argument; Alexia Harriton, by con-
trast, was fighting a lone battle.
132
n. 128 above, at [84]. 133 ibid., at [38].
134
Spigelman CJ was concerned as to the relation between public policy and the practice of
eugenics (Waller v. James (2004) 59 NSWLR 694 at [30]). Pre-implantation genetic
diagnosis is, however, being increasingly accepted and authorised in the United
Kingdom “ for a recent update, see Clare Dyer,˜HFEA Widens its Criteria for Pre-
implantation Genetic Diagnosis™ (2006) 332 British Medical Journal 1174.
224 The troubled pregnancy

they could have recognised the potential advantages of using donor
sperm “ and they were surely at fault in not putting the proposition to
the Wallers. In short, it seems to me that the case against Dr James and
Sydney IVF rests on the concept of a pre-conception tort135 similar to
those we have discussed above at p. 196. As such, it is clearly to be
distinguished from the case brought against Dr Stephens by Alexia
Harriton.136
Moreover, it might well succeed.137 In this respect, Waller is of consid-
erable interest to the United Kingdom jurisprudence where, as we have
mentioned above at p. 213, the Congenital Disabilities (Civil Liability)
Act 1976, section 1A holds that, in any case where:

b) the disability [in a child born disabled following assisted reproduction]
results from an act or omission in the course of selection . . . of the embryo carried
by her or of the gametes used to bring about the creation of that embryo, and
c) a person is under this section answerable to the child in respect of the act or
omission, 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.

It seems to me, therefore, to be, at least, arguable that Keeden Waller
would have won his case in England138 and this, in turn, leads, again and
particularly starkly, to the question of whether the soubriquet of ˜wrong-
ful life™ does not act to the detriment of the pursuer. Would the results be
different were the actions to be brought in negligence per se or would the
hurdle of legally cognisable damage still persist? The point arose, perhaps
most emphatically, in the leading Canadian case on the subject “ to which
jurisdiction we now turn.


A Canadian anomaly
Canada is yet another Commonwealth country where the wrongful life
action appeared relatively late. As recently as 2005, Lax J considered that



135
This was recognised in the Australian courts but was not argued at length. See, for
example, Ipp JA in Harriton in the Court of Appeal, n. 95 above, at paras [206] “ [208].
136
This argument is, I think, different from the suggestion that Waller was a ˜stronger™ case
than Harriton because the respondents in the former were more ˜actively involved™ in the
˜transmission™ of the fault than the respondent in the latter “ which was implicitly
rejected by Crennan J, n. 117 above, at [84].
137
In Australia, see X and Y v. Pal, n. 37 above. The arguments raised at p. 198 against the
imposition of indeterminate liability would not apply in relation to a specific pregnancy.
138
And, thus, unless Waller v. James is incorrectly labelled, enabling a wrongful life action in
England.
Wrongful neonatal life 225

the ˜existence of a cause for wrongful life remains unsettled in Canadian
jurisprudence139 and has never been settled in Ontario™.140
In fact, the more one looks at the relevant Canadian cases, the more
one gains the impression that the Provincial courts are unwilling to set the
pattern for the country as a whole and it may be that this accounts for
several apposite cases being unreported and others being struck out at an
early stage in the proceedings. The first case141 to go to appeal appears to
have been Lacroix v. Dominique142 “ a Manitoba case involving terato-
genic treatment during pregnancy. Here, both the trial judge and the
Court of Appeal relied heavily on McKay v. Essex Area Health Authority143
and found the reasoning in that case to be too compelling to allow for such
an action to be recognised in Canada “ ˜and I am unaware of any
Canadian circumstances which would cause judges here to think differ-
ently™ said Twaddle JA.144
Lacroix, however, raises an important general point in respect of cau-
sation which we have not yet addressed. McKay was an example of viral
infection during pregnancy; Lacroix was a matter of medication. The
health carers were ostensibly negligent in both cases “ in the former by
failing to identify the infection, in the latter by prescribing a drug with
a known potential for harming an immature fetus. As we have already
seen, no-one could accuse the staff of causing Mrs McKay™s infection;
Mrs Lacroix™ physician had, however, prescribed the offending drug “
one™s instinct, then, is to say that the hurdle of causation no longer stands
in the way of her child™s action. In response, Twaddle JA held that the
doctor was under no duty of care to the child “ to hold otherwise, he
thought, would create an irreconcilable conflict between his or her duties

139
This, however, is uncertain. In a Manitoba case occurring at much the same time, it was
said that the law in Canada does not recognise the neonate™s right to bring such a claim:
Bosard v. Davey (2005) CarswellMan 92, QB.
140
In McDonald-Wright, n. 115 above at 4. Once again, the wrongful birth action is well
recognised (see Arndt v. Smith (1997) 148 DLR (4th) 48 discussed in Chapter 3); the
parallel action for wrongful life in this case was abandoned: ([1994] 8 WWR 568) and
was not contested in McDonald-Wright save as to the ˜time-frame™. In the end, the
relevance of a wrongful life action was not decided in McDonald-Wright, it being thought
that the question was best left to the Court of Appeal. (At the time of writing it is
uncertain whether or not the case will proceed).
141
This depends on whether or not you regard Cherry v. Borsman, n. 153 below, as one of
˜wrongful life™. In my view it should be so classified “ and as an important one at that. But
it is hard to maintain this in view of the Court of Appeal™s statement: ˜The first thing that
must be said here is that in our opinion this is not a ˜˜wrongful life™™ case™ “ (1992) 94
DLR (4th) 487 at 503.
142
(2001) 202 DLR (4th) 121. 143 n. 65 above.
144
n. 142 above, at [43]. The main reason extracted from McKay was the impossibility of
assessing the damages to be awarded “ which, in passing, seems to the writer to be the
least acceptable of the many reasons adduced for denying the claim.
226 The troubled pregnancy

to both mother and child. On the other hand, the court had to face the
fact that a previous judgment in the Manitoba Court of Appeal had
found a physician negligent in respect of a child™s disabilities for having
continued to prescribe teratogenic drugs to its mother before taking spe-
cialist advice145 and this would seem to fit more comfortably with the
strong intuition that we have already expressed to the effect that the
pregnant woman™s attending physician owes a duty of care to both her
and her fetus.146 The ˜drug cases™ do not materially alter the fact that the
majority of wrongful life cases are, essentially, instances of communica-
tion based negligence “ the pregnant woman has a right to choose or reject
treatment in the light of the information provided, even though it may
appear irresponsible of her to do so.147 The clinical, jurisprudential
and, not least, semantic problems arising from the drug related action
are particularly formidable “ so much so that they, perhaps, merit inde-
pendent categorisation.
In passing, Lacroix provides one last note of comparative interest in
that the parental action for wrongful birth was time expired; it, thus, invites
comparison with the New Jersey case of Procanik v. Cillo148 which we have
discussed earlier in this chapter. Procanik may, as has been suggested, be
˜bad law™ but it does indicate that, given the urge to do so, the courts can
fashion a reasonable case for accepting the wrongful life action.
The question still remains, do the Canadian courts want to join the
hawks or the doves? One might have thought that Lacroix was sufficient to
settle the issue but, of course, Canada is a multi-jurisdictional state and
what happens in one province may well not be replicated in another. The
situation was confused by a number of cases heard at first instance in
Ontario which have been well summarised in Petkovic v. Olupona.149
Here, Epstein J attempted to resolve the conflict that had developed in
Ontario where, on the one hand, Jennings J struck out a claim for wrong-
ful life on the grounds that it:


145
Webster v. Chapman [1998] 4 WWR 335. I am unconvinced by the Court™s distinction
between the cases on the grounds that Mrs Lacroix would have elected to remain on
medication while avoiding intentional pregnancy.
146
The prospect of conflicting loyalties has, of course, been aired at Court of Appeal level in
the United Kingdom in Re F (in utero) [1988] Fam 122, [1988] 2 All ER 193. The
problem, that of wardship of an unborn child, was, however, more akin to administrative
law than to medical law. See also the Canadian case Winnipeg Child and Family Services
(Northwest Area) v. G(DF) [1997] 2 SCR 925. Yet, on the face of things, Lacroix is at
odds with the earlier Canadian case of Cherry v. Borsman (n. 153 below) and it is
surprising this was not brought up in argument.
147
Re MB (an adult: medical treatment) (1997) 38 BMLR 175, CA per Butler-Sloss LJ at
BMLR 186.
148
n. 49 above. 149 [2002] O.J. no. 3411.
Wrongful neonatal life 227

was plain and obvious that the common law that will be applied in Ontario knows
no action for ˜wrongful life™150

but, on the other, Sharpe J held:
This is an evolving area of the law. The issue has not been considered in depth
by Canadian courts . . . More generally, the legal regime relating to abortion has
undergone significant change resulting in an expanded scope for parental choice.151

This later view was backed in the trial stage of Petkovic by Gans J who
specifically disapproved Jennings J™s view as to the certainty of the current
law. In the end, Epstein J agreed that the matter was not settled in Canada
and refused to overturn the trial judge™s discretionary decision to allow
Trajan Petkovic™s action to proceed to trial. It is important to remember,
however, that these arguments have arisen and the decisions have been
taken mainly within the ambience of court procedure and administration
and, indeed, have been influenced by the fact that a trial of the parents™
claim was inevitable; accordingly, there was no economic advantage in
refusing to hear the wrongful life action “ and, once again, one is tempted
to question the logic of separating the two. Nonetheless, it does seem that
Petkovic has, at least, chipped the well-nigh impervious wall of resistance
to such a suit that appears to have been built up in Canada;152 we will
have to wait and see if the chip becomes a breach.
There are, however, many defences that have yet to be tested. The
problem of causation, for example, has scarcely been considered “ yet,
we have noted that, elsewhere, causation consistently presents a main
difficulty in establishing an action for wrongful life. Indeed, as we will see,
it is possible to define, or distinguish, the wrongful life action as a distinct
jurisprudential entity on the grounds that no person has directly caused the
injuries of which the neonate complains “ from which it follows in logic
that there can be no issue of culpability once an action is so framed.
Carrying this one stage further, we can reach the anomalous situation
whereby, such is the general antipathy to the suit, it would be to the
tactical advantage of the tortfeasor to be sued for wrongful life of
the neonate even when a causative link between wrong-doing and injury
was accepted. Relevant instances must, a priori, be very rare but such an
argument was, in fact, pursued in the extraordinary British Columbian


150
Mickle v. Salvation Army Grace Hospital (1995, unreported).
151
Sharma v. Mergelas, Nowaczyk v. Majewski (1997, unreported).
152
Though one must be careful using such a generalisation. In view of the very few reports
available, the most that should be said is that there is no evidence to suggest otherwise;
indeed, the topic may not even have been addressed as such outside Ontario and
Manitoba.
228 The troubled pregnancy

case of Cherry v. Borsman153 which might have provided a perfect illus-
tration had it not been for the court™s obvious reluctance to run it as such “
possibly because of the danger of distorting case law in the process.

The case of Mrs Cherry. Mrs Cherry underwent an abortion
on what would correspond to the ˜social grounds™ in the UK Abortion
Act 1967, section 1(1)(a). The obstetrician misinterpreted the gestational
age of the fetus “ possibly because of a failure in communication “ and, as
a result, he failed to terminate the pregnancy.154 As so often happens when
an error occurs, things went from bad to worse. She was re-examined by
Dr Borsman a month later and, despite an expressed suspicion on the part
of her general practitioner to the contrary, she was declared not to be
pregnant “ although her pregnancy test was not repeated. Two months
later she was diagnosed by another obstetrician as being between 19.3
and 23.5 weeks pregnant which made her beyond the time at which
a termination could be legally performed in Canada. Nonetheless,
Dr Borsman assured her that there was little, if any, chance of the fetus
having been damaged and, in all the circumstances, she was resigned to
continuing her pregnancy “ and was even anxious to do so. The saga of
complications continued and, after a stormy gestation, she was delivered
of a 31-week-old baby by caesarian section. The baby, Elizabeth, was
markedly deformed, the abnormalities being, in general, compatible with
prolonged intrauterine compression due to a deficiency of amniotic fluid “
the so-called oligohydramnios syndrome. As if this was not enough, she
sustained severe necrosis of the bowel with accompanying organic brain
damage; she was severely disabled both physically and mentally and
required constant nursing. Her condition as described by the judge of
the British Columbia Supreme Court
was such as, in my view, to place her clearly within the ambience of an ˜intolerable
existence™ foreshadowed by Templeman LJ in Re B.155
Mrs Cherry™s case, therefore, provides us with yet another problem of
classification. During the course of the trial it was held that Dr Borsman

153
(1990) 75 DLR (4th) 668, BCSC; (1992) 94 DLR (4th) 487, BCCA.
154
Mrs Cherry had a retroverted uterus. Skipp J noted that some 49 per cent of women in
whom a termination fails have this condition; he considered that this laid a duty on the
doctor to be especially vigilant (at 75 DLR 671). The case also raises, once again, the
question of the pathologist™s role “ and the interpretation of the pathologist™s report “ in
such cases.
155
n. 2 above. For examination of the meaning of ˜intolerable™, see the relatively recent, albeit
unrelated, cases of W Healthcare NHS Trust v. H [2005] 1 WLR 834, CA and R (on the
application of Burke) v. General Medical Council (2005) 85 BMLR 1, CA “ and, even more
recently, An NHS Trust v. MB and others [2006] EWHC 507, [2006] 2 FLR 319.
Wrongful neonatal life 229

was at fault in the post-operative care he gave and that, had he, at an
early stage, determined that Mrs Cherry was still pregnant “ as he should
have done “ she would have had a second abortion and the infant plaintiff
would never have been born. Moreover, intuition, if nothing else, tells us
that there is a possibility of damage to a fetus that has survived an
attempted abortion; no matter how well the contrary could be argued,
the possibility is surely such as is sufficient to justify an appropriate
warning to the patient.156 The potential child was already disabled
when the opportunity to give such a warning was rejected and the child
was born disabled. To my mind, the scene was set for a wrongful life
action and, moreover, an action from which the stumbling block of lack of
causation had been removed “ as the trial judge helpfully acknowledged
˜the admissions almost encourage such an action™.157
The unique, if not bizarre, aspect of Cherry is that it was the defendant
who described it as a case of wrongful life and it is not difficult to see the
reason. Dr Borsman™s duty of care to his adult patient “ and, hence, the
availability of a wrongful birth action “ was never in doubt. The interest of
the case lies in the additional concept of a duty of care to the fetus which is
inherent to the wrongful life action. Given that it was classified as such,
there was a very good chance that it would be held that there was no such
cause in British Columbia;158 the court in Cherry was palpably anxious to
avoid such a result and adopted the alternative view that the plaintiff™s
claim could be determined on ordinary negligence principles.
We have argued at several points in this book that, with the possible
exception of therapy designed for her benefit, a pregnant woman™s med-
ical attendant owes a simultaneous duty of care to the woman herself and
to her fetus. Consequently, a fetus that is harmed in utero has a right of
action against the tortfeasor once he or she is born. In the current case,
Skipp J held that Dr Borsman owed a duty to Elizabeth not to injure her
and, here, we come up against what the writer, at least, sees as a major
conceptual problem. Certainly, the doctor/patient relationship imposes a
duty on the former not to harm the latter. At the same time, the law, and,
to an extent, common sense, tell us that to kill another being is to inflict
the maximum harm on that being. It is a strange interpretation of a duty

156
As Skipp J at first instance said: ˜It is clearly foreseeable that a negligently performed
abortion may affect a fetus™ (at 75 DLR 676, emphasis added).
157
ibid., at 679.
158
The Supreme Court quoted no British Columbia precedents other than Fredette v. Wiebe
(1986) 29 DLR (4th) 534. But the question of wrongful life did not arise in that case
of failed abortion. Similarly, a number of Canadian and English cases cited under
˜Wrongful Life™ (at 685 et seq.) were, in fact cases of wrongful pregnancy brought by
the mother “ for which, see Chapter 4.
230 The troubled pregnancy

of care to say: ˜I am going to kill you and promise not to injure you™ “ it is a
sobering thought that, transferring this to capital punishment, the con-
demned man might well have settled even for tetraplegia rather than
death. The abortionist may have a duty of feticide “ and even this may
be limited159 “ but, again, he or she owes this to the mother. To extend
this to a duty of care to the condemned fetus is grossly to overstretch the
meaning of the words. Mrs Cherry™s case, in fact, raises a whole host of
medical ethical issues including doubts as to whether a woman™s obste-
trician should also be her abortionist. Does the conflict of interests
inherent within the combined role render it unacceptable practice?160
But such concerns can only lead us back to the Hippocratic Oath and to
follow that path is, as Chapter 2 has shown, little better than to divert into
a moral cul-de-sac.
Rather, we can more usefully follow the paralogic of Skipp J who held
quite clearly that, insofar as it is foreseeable that a negligently performed
abortion may cause injury to a fetus, the doctor has a corresponding
duty to prevent this foreseeable harm.161 There are several difficulties
here. The first, as has already been intimated, is the conceptual one of
visualising injury as being more damaging than death but this is an
inevitable consequence of denying the fetus personality until it is born “
it has long been recognised in law that it is safer to kill a fetus than to
scratch it.162 This hurdle was recognised by Skipp J, but he did not
believe that he was, thereby, conferring legal personhood on the fetus;
rights accrued only to the neonate who could claim compensation for
injuries sustained in utero.163 As a result, the claim for injury could be
settled on ordinary negligence principles and both the adult and the infant
were entitled to recover for their pain and suffering.



159
We are concerned here only with the early termination of pregnancy. It is arguable that
the abortion of a ˜normal™ and viable fetus involves a collateral moral duty to preserve its
life.
160
The defendant in Cherry in fact based his case very largely on the question: ˜How can the
surgeon have a duty to the mother to destroy the foetus and at the same time have a duty
to protect the foetus?™ “ going on to say that the duty to the mother negatives any duty of
care to the foetus. The Court of Appeal however held that the abortionist ˜owes a duty of
care to the mother to perform his task properly but at the same time owes a duty of care
to the foetus not to harm it if he should fail in the duty of care he owes to the mother™
( (1992) 94 DLR (4th) 487 at 504). All of which seems very like expecting the horse to be
in its stable after it has bolted and is not very helpful. In this respect, it is interesting to
compare the reasoning in the later case of Lacroix (n. 142 above) with that in Cherry.
161
n. 153 above, at 75 DLR 676.
162
Amadio v. Leven 501 A 2d 1085 (Pa., 1985). See also P. J. Pace, ˜Civil Liability for Pre-
natal Injury™ (1977) 40 Modern Law Review 141“58 at 148.
163
And this, as we have seen, represents the law in the vast majority of jurisdictions.
Wrongful neonatal life 231

Nevertheless, the judge was ambivalent to the extent of admitting that
the claim contained the elements of a wrongful life action as well, thus
entitling the claimants to be compensated on either basis and, while the
Court of Appeal dismissed the appeal in respect of liability,164 it appeared
equally anxious to dispose of this doubt once and for all “ and it did so
very shortly:
The first thing that must be said here is that in our opinion this is not a ˜wrongful
life™ case as asserted by the defendant . . . This is not a case where the plaintiffs
assert a legal obligation to the foetus to terminate its life as was the position in
McKay v. Essex Area Health Authority.165
And, again:
It is significant that the infant plaintiff relies on the injuries she alleges she
sustained in the [first] operation. No reliance is placed by the infant plaintiff on
the defendant™s failure to realize the abortion had failed. The duty of care in that
respect, say the plaintiffs, is a duty to the mother and the mother only. That, say
the plaintiffs, is why this is not a wrongful life case. We agree with that analysis.166

So, is the generally unsatisfactory nature of Cherry down to no more than
the nature of the pleadings? That may be so, but for an alternative, and
more positive, view, we must return to Skipp J:
The admissions by the defendant doctor . . . do set up a wrongful life action . . . But
they constitute only a part of the plaintiff™s allegations. It is the additional allega-
tion that the defendant caused the infant plaintiff™s injuries that sets this action
apart from wrongful life actions.167

If this be so, apart from indicating that Canada is unlikely to adopt such
an action, Cherry leads us to a remarkable circular conclusion which we
have already mooted. A wrongful life action brought against a health carer
will almost certainly fail on a number of grounds “ one of which is the
major difficulty of attributing causation to that health carer. If, however,
causation can be shown, the case ceases to be one of wrongful life and
remains one of negligence simpliciter. We have, therefore, unearthed
another reason why the wrongful life action can be seen as little more

164
Cherry v. Borsman (1992) 94 DLR (4th) 487. 165 ibid., at 503. 166 ibid., at 506.
167
n. 153 above, at 75 DLR 679. It seems, however, that Cherry is not unique in a global
sense. The circumstances appear to have been very similar in a French case which I have
not been able to check personally. An abortion was carried out ineffectually and
damages were awarded to the neonate by way of the doctor™s negligence in failing to
check whether or not the abortion was successful: CE. 27 December 1989, D.1991.
J.80, cited by Tony Weir, ˜The Unwanted Child™ (2002) 6 Edinburgh Law Review
´
244“53. Weir points out, however, that the Conseil d™Etat subsequently withdrew the
damages to the child but substituted an award to the parents for the upkeep of the child
for life.
232 The troubled pregnancy

than duplicative. Yet both the French and the Dutch courts have found a
need for the suit and have found their own ways round allowing it. How
has this come about?

Wrongful life in Europe
In France, l™arret Perruche168 caused a major political crisis and it certainly
ˆ
had its own problems during the course of the litigation.
The circumstances of the case were fairly standard and very compara-
ble to those in McKay in that the fact that Mme Perruche suffered from
rubella during her early pregnancy was ignored by her health carers; as a
result, her child was born with severe disabilities. In brief, the court of first
instance held that both the physician in charge and the laboratory were
negligent in their interpretation of her antenatal condition and awarded
damages not only to the woman herself but also to her son in recompense
for the loss caused by his resulting handicap. On appeal to the court
in Paris, the mother™s claim was upheld but that of the handicapped
child was denied on grounds that were, in general, similar to those
given in McKay. Following the rather complex French judicial system
involving parallel paths to recompense for negligence, the case was, then,
re-appealed and cross appealed, to the Cour d™Appel in Orleans where it
was agreed that the child did not suffer any compensable harm resulting
from the negligence in question “ the reason being on the standard
grounds that his affliction resulted not from such negligence but solely
from his mother™s having German measles.
The case then went to the highest court. The definitive findings of the
Assemblee Pleniere are brief169 and can be quoted verbatim:
´ ´`
[C]onsidering that the negligence of the doctor and the laboratory in the
performance of their contracts with Mme [Perruche] prevented her exercising


168
X v. Mutuelle d™Assurance du Corps Sanitaire Francais (2000) JCP 2293. French courts do
¸
not issue lengthy and explanatory judgments. The opinions of the Avocat General ´´
Sainte-Rose and of the Conseiller-Rapporteur to the court, P. Sargos, are, however,
available in full and are widely quoted in the relevant literature. The opinion of the latter
is especially valuable as a contribution to the general debate: J.C.P. G 2000, II-10438.
169
The translation used is that provided by Weir, n. 167 above. The court decision is
further disapproved in Therese Callus, ˜˜˜Wrongful Life™™ a la Francaise™ (2001) 5
´` `
Medical Law International 117“26. For a wide-ranging, and particularly helpful, review
of the Anglo-French position, see Anne Morris and Severine Saintier, ˜To Be or Not to
Be: Is That the Question? Wrongful Life and Misconceptions™ (2003) 11 Medical Law
Review 167“93. An analysis in depth and a particularly useful review of the French
literature on the case are provided by Penney Lewis, ˜The Necessary Implications of
Wrongful Life Claims: Lessons from France™ (2005) 12 European Journal of Health Law
135“53.
Wrongful neonatal life 233

her freedom to proceed to a termination of the pregnancy in order to avoid the
birth of a handicapped child, the harm resulting to the child from such handicap
was caused by that negligence and he can claim compensation for it.170

This judicially binding decision caused widespread and professional con-
sternation.171 The opposition came from such apparently disparate
groups as the anti-abortionists, campaigners on behalf of the disabled
and the medical profession backed by its insurers “ and the French
Parliament rapidly made it impossible for a later court to follow that
precedent.172 The effect is that not only wrongful life is now not
actionable in France but, also, a wrongful birth action is available only
in strictly limited circumstances. The economic shortfall for the injured
parents is to be made up from the state social security services. One of
the main factors taken into account by the Cour de Cassation was
that damages awarded to the parents might not be applied where they
were needed “ that is, to the care of the disabled infant or, in more
practically important terms, to the care of the disabled young adult.173
Many on this side of the English Channel might wonder if the
social services would provide an even less certain altruistic source of



170
Morris and Saintier, n. 169 above, point out that it is a well-accepted principle in French
law that a third party who suffers damage because of a breach of contract can use the
contract against that party in order to claim damages (at 179, n. 58).
171
It has to be said that the flames of public dissatisfaction at the Perruche decision were
almost certainly fanned by those in two comparable cases “ though, this time, of Down™s
syndrome “ which arose at much the same time and which were settled in the same way:
Alexander Dorozynski, ˜Highest French Court Awards Compensation for ˜˜Being Born™™™
(2001) 323 British Medical Journal 1384. The case of Child L is discussed by M. Spriggs and
J. Savulescu, ˜The Perruche Judgment and the ˜˜Right Not to be Born™™™ (2002) 28
Journal of Medical Ethics 63“4. See also A. M. Duguet, ˜Wrongful Life: The Recent
French Cour de Cassation Decisions™ (2002) 9 European Journal of Health Law 139“63.
I have always contented that attitudes to physical and mental disablement should be
distinct. See Mason ˜Wrongful Life™, n. 74 above, at 158.
172
The relevant sections of the provisional law adopted by the French Senate, and sub-
sequently embodied in Loi no. 2002“303 of 4 March 2002, run:
One cannot treat the mere fact of being born as constituting damage. A child born with a
handicap which is due to medical malpractice may claim compensation if the faulty
conduct directly caused the handicap, aggravated it or prevented the adoption of
measures which could have alleviated it. The parents of a child born with a handicap
which remained undiagnosed during pregnancy owing to serious fault on the part of a
professional or health establishment may claim compensation only for the harm suffered
by them personally, not including any special costs attributable to the child™s being
handicapped, for which compensation will be provided through national solidarity.
173
˜The defence of his interests, such as the expression of dignity in the conditions of his
future life, seem to be better assured by the provision of an indemnity which is his very
own™, Le texte de l™arret Perruche, Le Monde, 10 January 2002 (author™s translation).
ˆ
234 The troubled pregnancy

funding;174 but, then, the welfare state is an integral component of the
French culture.
The difficulties experienced by the French were not, however, to deter
the Dutch from following the same path in the case of Kelly Molenaar.175
In Molenaar, the midwife managing the pregnancy failed to heed a strong
indication of the need for amniocentesis and the child was born with a
severe chromosomal defect. The nature of this is uncertain but it is clear
that she was in very considerable pain due to extensive physical and
mental disabilities. The case first came to international notice in the
Court of Appeal in The Hague where compensation was awarded, not
only to the parents, but also to the child in respect of non-pecuniary
damage.176 As to the first, the Court followed the relatively standard
approach to claims for wrongful birth “ the mother™s legal right to opt
for termination of the pregnancy had been infringed as a result of the
hospital™s negligence. Interestingly, despite the latter™s contention that it
had not been demonstrated that Mrs Molenaar would have elected for
abortion had she been properly informed, the court held that, given the
circumstances, it could be reasonably assumed that she would have done
so. It was, thus, prepared to adopt an objective test of causation in the
wrongful birth action.177
The court™s reasoning in respect of the child™s action was, at first
glance, a trifle convoluted and took two lines. First, it was proposed
that the midwife had a contractual obligation to the pregnant woman
and that the unborn child could be considered to be party to that con-
tract.178 The logic underlying this appears to the present writer to look
very much like a civil variation on the criminal concept of transferred
malice. The latter has been criticised in the United Kingdom179 and it is,
at best, uncertain whether such an extended interpretation would be
accepted here.180 The Hague court was, itself, clearly hesitant on the
point and opined that, in the alternative, the health authority was under a

174
Indeed, Morris and Saintier, n. 169 above, criticise the resulting law as being without
teeth and arguably providing, in the end, ˜the greatest affront to personal dignity™ (at
191). For earlier discussion, see Shapira, n. 120 above.
175
X v. Y, The Hague, Court of Appeals, 26 March 2003.
176
I am indebted to personal communication with Professor Nys and Dr Derckx and to
H. F. L. Nys and J. C. J. Dute, ˜A Wrongful Existence in the Netherlands™ (2004) 30
Journal of Medical Ethics 393“4.
177
Compare the strongly subjective approach adopted in the United Kingdom: e.g. Gregory
v. Pembrokeshire Health Authority [1989] 1 Med LR 81 (see Chapter 3).
178
As had previously been accepted in the unreported ˜Baby Joost™ case of 8 September
2000.
179
Attorney-General™s Reference (No.3 of 1994) [1998] AC 245, HL.
180
It would, in any event, be complicated by the fact that there is no contract between
patient and medical attendant within the National Health Service “ Pfizer Corporation v.
Wrongful neonatal life 235

legal obligation to look after the interests of the fetus as an independent
entity “ and it is to be noted that this has been argued as an evident duty,
albeit partially confined, throughout this chapter. As might be expected
in that jurisdiction, however, the Dutch Court of Appeal relied to an
extent on the nasciturus principle “ that is, that a child in utero can be
regarded as being alive if it is in his or her interests to do so.181 The
element of causation necessary for a successful action in negligence was
supplied by the fact that the birth of the child could have been prevented;
the damage from which the child suffered was, as a result, a direct
consequence of a negligent medical error.
To accept the principles of the Molenaar judgment involves accepting a
number of conclusions with which many other jurisdictions have been
unable to come to terms. Firstly, one has to accept not only that, despite
the court™s protestations to the contrary, it implies that to be born with
physical disability represents a compensable harm. As is attributed to the
Professor of Health Law at the Free University of Amsterdam:
To recognise a disabled life as a source of financial damages gives the wrong signal
to society. Disabled people should be fellow citizens not someone who should
have been aborted.182
With which we would all, surely, agree but to which one can reply “ as
I see it, rightly183 “ that it is not the child that is being valued but, rather,
the cost of caring for that child™s needs. This paraphrase of Pierre Sargos,
Rapporteur to the Perruche court,184 is particularly telling:
Refusing to compensate the [disabled] child is equally contrary to human dignity
[as it is to place a negative value on his life]. Compensation gives him the means to
protect his dignity, and enhances that dignity by giving him, personally, the right
to claim.185
But the more practical problem raised by the European decisions lies in
the considerable semantic juggling that they demand in surmounting the
apparently insurmountable hurdle of causation “ and this may not always
lead to easily acceptable conclusions. In essence, we have to interpret

Ministry of Health [1965] AC 512. One™s feeling is that any such transfer would have to
be based on the existence of a non-contractual civil wrong involving the fetus “ as in the
Court™s second option.
181
Wrongful life actions have not been addressed as such in Scotland but it is suspected that
a rather similar argument could be deployed there “ and it might not be necessary to
invoke the civil law nasciturus fiction: see Hamilton v. Fife Health Board 1993 SCLR 408.
182
J. Hubben, quoted by Tony Sheldon, ˜Court Awards Damages to Disabled Child for
Having Been Born™ (2003) 326 British Medical Journal 784.
183
See the commentary on McFarlane v. Tayside Health Board at p. 123 above.
184
n. 168 above.
185
The quotation is from Morris and Saintier, n. 169 above, at 186.
236 The troubled pregnancy

causation in terms of liability not as the cause of the disability but as the
cause of the exhibition of the disability “ and this, we have seen, has been
viewed as a bridge too far by the great majority of common law courts.
Not only does it reopen the McKay court™s fears as to the encouragement
of abortion but it also goes a long way in justifying the intense opposition
to the Perruche decision that was shown by the French medical profession.
Consequently, the result of the further appeal to the Supreme Court of
the Netherlands in Molenaar was bound to be of major jurisprudential
importance.
And, in the end, the Supreme Court186 stood firm and refused to be
influenced either by the parliamentary reaction to Perruche in France or
by the comparable domestic reaction to the Court of Appeal in Molenaar.
It found that the midwife had been negligent in her management of the
case and agreed that compensation should be available to the parents not
only for the general and special costs of caring for Kelly but also in
recognition of the emotional damage sustained and the cost of its treat-
ment. More importantly in the present context, the viability of the child™s
action was confirmed primarily on the grounds that the parents contract
with the hospital was undertaken partly on behalf of the child and,
alternatively, that the hospital owed a duty of care to the child to act in
her ultimate interests even though she was not a party to the agreement. It
is, admittedly, difficult to unravel the ratio behind a very long judgment in
the absence of a full and authoritative translation.187 However, the court
was adamant that it did not attribute Kelly™s emotional damage, for which
she was to be compensated, to her existence as such. The award of
damages was justified solely on the basis that her condition was a foresee-
able consequence of professional negligence “ or a failure to act with
reasonable competence. The ˜consequence™ was the birth of a disabled
child which could have been prevented by timely intervention “ that is,
antenatal counselling to the effect that a legal termination of pregnancy
was available. Thus far, we are in the well-trodden footsteps of the
wrongful birth action. But, in attributing emotional damage to the neo-
nate, the Supreme Court appears to have taken an incremental step
forward in placing the ˜choice™ of termination in the hands of the fetus “
albeit vicariously. My translation runs:
Admittedly, Kelly herself could not entertain the question of whether she wanted
to be alive, but that decision could be taken on her behalf by her parents. Within

186
LJN:AR5213, Hoge Raad, C03/206HR, 18 March 2005.
187
I am grateful to Ms Claudia van Tooren, one of my students, for the partial translation
that she undertook. See also Tony Sheldon, ˜Dutch Supreme Court Backs Damages for
Child for Having Been Born™ (2005) 330 British Medical Journal 747.
Wrongful neonatal life 237

the confines of the law, that decision could only be left to the parents and the fact
that they may have chosen to have an abortion must be respected given the serious
risks with which Kelly was faced at the time, and which have since materialised.
Thus, in placing the choice to live or die in the hands of the fetus, the Court
seems to have allowed Kelly Molenaar compensation for emotional dam-
age ˜because of the fact she was born™188 and, in doing so, has crossed the
philosophical Rubicon and allowed a pure wrongful life action. That is a
major step in a doubtful direction “ but there is, as yet, no evidence of a
popular or parliamentary backlash such as arose in France.

Conclusion
Confusing though they may be, the recent European cases confirm the
suspicion that there is a movement, on a global scale, towards revision of
our hitherto ingrained attitudes to the wrongful life action. The reasons
for the existing antipathy are multiple but, as the individual cases dem-
onstrate, each can be countered by acceptable argument “ even though it
may be in the form of minority opinion. The difficulty is to combine these
separate arguments into a coherent whole by which to justify “ or refute “
the apparent change in attitude.
Fundamental to the discussion is the very nature of the action. The
difficulty that has beset every jurisdiction is that the correlate of wrongful
life is rightful death “ and Stephenson LJ crystallised the consequent
dilemma when he asked: ˜How can there be a duty to take away life?™
I am convinced that this question reveals an underlying misconception “
the child bringing a wrongful life action is not complaining of being born
but of being born disabled.189 The action is, in reality, one for diminished
life. He or she is not, thereby, claiming that an individual caused the
disabilities. Rather, the action is of the nature: ˜I sought your advice as to
whether to choose to live a disabled life was in my interests. My interests
would have been served had the advice been that I would be severely
handicapped if I lived. Due to your negligence, I was deprived of a choice,
I am severely handicapped and my interests in life are compromised.
I need restitution for the loss of those interests™190
Accepting a diminished life construct assists us in several other aspects
of the wrongful life debate. First, we are no longer grappling with the
mysteries of non-existence and can return to the physical world we know.

188
Sheldon, n. 187 above.
189
It is to be noted that this concept was accepted by Lawson J in the trial phase of McKay,
n. 65 above, [1982] QB 1166 at 1175, [1982] 2 All ER 771 at 777.
190
Rethinking Mason, n. 74 above, at 157.
238 The troubled pregnancy

Second “ and on much the same line “ it allows the courts to assess the
neonate™s deficit in understandable terms; the ˜intolerable and insoluble
problem™ of the assessment of damage, which Griffiths LJ saw as the most
compelling reason for rejecting the cause of action,191 no longer applies;
the courts are perfectly able to assess the monetary equivalents that
separate a normal and a disabled life. And, third, and, perhaps, concep-
tually most importantly, it firmly correlates recompense with suffering
due to negligence “ that is, negligent advice given to the fetus through its
mother. It is the neonate who suffers and every instinct tells us that this
should be recognised; recognition of a ˜diminished life™ spares us the
uncomfortable, and often used, excuse that not all losses give rise to
compensation in tort and that wrongful life is one of them.
Problems, of course, remain. High among these is the rule that the
object of recompense is to restore the injured party as nearly as possible to
his or her state before the injury which would, logically, be non-existence.
Once again, however, this problem is, at least, reduced once it is appre-
ciated that the injury is being born disabled “ not being born. We are
still left with the thorny problem of causation which I have partially
addressed above. We will see, however, in the next chapter that the
concept of neonatal refusal of treatment by way of parental decision is
well-recognised by both the judiciary and the general public. Given the
fact that, as we have already noted, an injury sustained in utero matures in
a legal sense at birth, there is no reason why such proxy decision making
should not extend to the fetus “ and it is this concept that, I believe, lies at
the heart of both the Perruche and Molenaar decisions. Effectively, the

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