Professional Documents
Culture Documents
Notes
1. McFarlane v Tayside Health Board [2000] 2 AC 59.
2. See Diana Brahams, Editorial: Damages for Unwanted Healthy Child Awarded to Physically
Disabled Mother But Not to Mentally Handicapped Mother (2003) 71(1) Medico-Legal Journal 1.
3. Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52.
4. [2000] 2 AC 59, 82 (per Lord Steyn).
5. In wrongful conception actions, parents seek damages from clinicians on the basis that they
would not have conceived the child (healthy or disabled) but for the negligence. Wrongful birth
claims generally only involve the birth of a disabled child. Typically the negligence at issue
includes failures in genetic counselling or diagnosis, which leaves parents under the false
impression that the child is healthy. The crux of the claim is that, but for the negligence, the
parents would have elected to terminate the foetus under the Abortion Act 1967, s 1(1)(d). Note
that wrongful life claims are different, though they arise out of the same circumstances as wrongful
birth claims. In these suits, the action is instituted by the impaired child (or its representative) who
claims that but for the negligence, his/her parents would have aborted the pregnancy. This latter
action has been barred in English law since the case of McKay v Essex AHA [1982] 2 All ER 777
and is excluded under the Congenital Disabilities (Civil Liability) Act 1976, s 1(5).
6. Hale DBE, The Value of Life and the Cost of Living Damages for Wrongful Birth, (2001) 7
British Actuarial Journal 755, 755.
7. See for example, Jackson, Regulating Reproduction (Oxford: Hart Publishing, 2001); Mason,
Unwanted Pregnancy: a Case of Retroversion? (2000) 4 Edin L Rev 191; Maclean, McFarlane
v Tayside Health Board: a Wrongful Conception in the House of Lords (2000) 3 Web JCLI.
8. Maclean, Distributing the Burden of a Blessing (2004) 3 Journal of Obligations & Remedies 23,
37.
9. Thake v Maurice [1985] 2 WLR 215, 230.
10. Parkinson v St James [2001] 3 All ER 97.
11. [2001] 3 All ER 97, [40].
12. [2001] 3 All ER 97, [82].
13. [2001] 3 All ER 97, [90].
14. Mason, Wrongful Pregnancy, Wrongful Birth and Wrongful Terminology, (2002) 6 Edin L Rev
46, 64.
15. Hoyano, Misconceptions about Wrongful Conception, (2002) 65 MLR 883, 891.
16. [2001] 3 All ER 97, [51] (per Brooke LJ).
17. Hoyano, 897.
18. [2001] 3 All ER 97, [50].
19. Hoyano, 904.
20. Maclean, Distributing the Burden of a Blessing, (2004) 3 Journal of Obligations & Remedies 23,
2324.
21. Rees v Darlington Memorial Hospital NHS Trust [2002] EWCA Civ 88.
22. [2002] EWCA Civ 88, [23].
23. [2002] EWCA Civ 88, [23].
24. (2000) BMLR 39. In the wrongful birth case of Rand v East Dorset, the mother gave birth to a
child with Downs Syndrome. The negligence consisted of the failure to inform the parents,
following antenatal scanning, of the high risk of this reproductive outcome, thereby depriving the
claimant of the opportunity to terminate her pregnancy under the terms of the Abortion Act 1967.
Newman J, presented with the difficult task of determining this case shortly after McFarlane, held
that parents could claim for the additional costs of child maintenance. Construing the claim as
one for pure economic loss, Justice Newman considered that the Health Authoritys liability to
compensate depended not upon the childs disability, but upon the reasonable expenditure by the
parents (i.e. what the parents could have afforded to pay) in connection with the disability.
25. [2000] Lloyds Rep Med 498. In this wrongful birth case which followed Rand, the doctor
negligently failed to diagnose German measles whilst the mother was pregnant. The claimant gave
birth to a severely disabled child. Illustrating clear disagreement with the approach of Newman J in
Rand, Henriques J considered it deeply unattractive and legally incorrect that damages be
assessed by reference to parental means, rather than the childs needs. Henriques J distinguished
Rand and held that claimants could recover damages for the past and future costs of raising the
child, as were related to the childs disability. For a detailed analysis of both Rand and Hardman,
see Hoyano.
26. Read, The Family and Society, Listening to Mothers (Buckingham, OUP, 2000), 52.
27. [2001] 3 All ER 97, [90].
28. [2002] EWCA Civ 88, [53].
29. [2001] 3 All ER 97, [71].
30. Jackson, Action for Wrongful Life, Wrongful Pregnancy and Wrongful Birth in the United States
and England (1995) 17 Loyola of Los Angeles International & Comparative Law Journal 553,
607.
31. Mason, 66.
32. [2000] 2 AC 59.
33. [1966] 1 WLR 1234.
34. [2000] 2 AC 59, [7].
35. Dixon, An Unconventional Gloss on Unintended Children, (2004) 153 NLJ 1732, 1733.
36. [2000] 2 AC 59, [46] (per Lord Steyn).
37. [2000] 2 AC 59, [56].
38. Lunney, A Right Old Mess: Rees v Darlington Health Authority (2004) UNELJ 145, 150.
39. [2000] 2 AC 59, [145].
40. [2000] 2 AC 59, [112].
41. Note however, the recent retirement of the Right Honourable Lord Steyn.
42. [2000] 2 AC 59, [9].
43. Lunney, 153.
44. Maclean, 41.
45. Maclean, 4142.
46. [2000] 2 AC 59, [123].
47. [2000] 2 AC 59, [103].
48. Hoyano, 900.
49. Cattanach v Melchior [2003] HCA 38 (Australia) (per Kirby J), [128].
50. [2003] HCA 38 (Australia), [162]. On facts which closely resemble those of McFarlane (except in
Cattanach, the negligent post-operative advice was given to the wife following a sterilisation
procedure), the High Court of Australia held by a 4:3 majority that child maintenance damages for
the wrongful conception of a healthy child were recoverable, and rejected that any set-off should
apply for the benefits flowing from a healthy childs birth. For an analysis of this judgment, see
Vranken, Damages for Wrongful Birth the Australian Perspective (2003) (November)
International Family Law Journal 210.
51. [2003] HCA 38 (Australia), [162].
52. Priaulx, Joy to the World! A Healthy Child is Born! (2004) 13 SLS 5.
53. See Cane, Another Failed Sterilisation (2004) LQR 189.
54. [2003] UKHL 52, [6] (per Lord Bingham).
55. Morris, Another fine mess the Aftermath of McFarlane and the decision in Rees v Darlington
Memorial Hospital NHS Trust (2004) 20 Professional Negligence 2, 12.