Edwards v Blomeley; Harriton v Stephens; Waller v James: wrongful life actions in Australia.

• Jurisdiction: Australia
• Date: 01 December 2002
• Author: Watson, Penelope
• Published date: 01 December 2002
• Author: Watson, Penelope

I Introduction II The Facts III The State of the Law A England 1 Duty of Care 2 The Nature of the Harm Suffered 3 Public Policy B The United States C France IV Decisions on Wrongful Birth A England B Australia C Distinguishing Wrongful Birth Claims V Conclusion I INTRODUCTION

Children all around the country are going into court and claiming that they should have been aborted. Parents are agreeing with their children, and they too are asking courts to award them damages because they did not abort. (1) So begins one recent American article on the subject of wrongful life and wrongful birth claims in tort. An action for wrongful life is a claim brought by a child against a defendant for failing to prevent them from being born. Wrongful life claims need to be distinguished from wrongful birth claims, (2) in which the action is brought by the parent or parents of an unintended child. Typically, both types of action will be brought against an allegedly negligent medical service provider, although in both cases any genetic or disease-related birth defects exhibited by the child are not caused or produced by negligent diagnosis or treatment by a physician.

The gist of both claims is that, but for the medical practitioner's negligence and/or breach of contract in failing to sterilise the parent competently, or failing to detect a pregnancy or foetal abnormality at a sufficiently early stage for an abortion to be procured, or similar breach of duty, the child would not have been born at all. From the mother's point of view, she has been deprived of an opportunity to manage her fertility, including choosing to terminate the pregnancy, and the opportunity to determine the size of her family. From the child's point of view, he or she has been born forced to suffer from disability and denied the opportunity of non-existence.

While wrongful birth claims have generally been accepted by the courts, wrongful life cases (despite their long history (3)) have been enormously controversial. This is because, when brought as negligence actions, wrongful life claims raise questions at all stages of the standard duty, breach, causation and harm paradigm. The extent and scope of the duty of care owed to the unborn, the identification of life as the relevant harm, and the causal nexus between harm and breach of duty are all problematic. In addition, there are significant difficulties concerning the appropriate measure of damages.

In Australia, the New South Wales Supreme Court has recently rejected three wrongful birth life claims in the cases of Edwards, Harriton and Waller, each decided by Studdert J. The decisions provide a useful overview of many of the legal and policy arguments surrounding the wrongful life and wrongful birth debates.

This case note canvasses the state of wrongful life claims in Australia and other key jurisdictions in light of the long-standing recognition of wrongful birth actions. Due to public policy objections and clear obstacles of legal principle, I conclude that there is little prospect of widespread acceptance of the wrongful life cause of action in the near future.

II THE FACTS

In each of Edwards, Harriton and Waller, it was alleged that the pregnancy in question would never have occurred, or would have been terminated, but for the negligence of the defendant. In each case, the plaintiff was born with significant disabilities not directly caused by the negligent act or omission. The claims were variously pleaded in negligence and breach of contract, or negligence alone. Whilst the facts differed somewhat, all three wrongful life cases were framed in such a way as to require the Court to determine as a preliminary matter of law the question of whether a cause of action for wrongful life is recognised at common law in Australia and, if so, what categories of damages are available.

Edwards arose out of an unsuccessful vasectomy procedure performed on the plaintiff's father. It was common ground between the parties that the doctor both failed to perform the vasectomy with reasonable care and skill and failed to advise the parents that the vasectomy had failed or had probably failed. (4) It was conceded that the defendant's negligent operation and advice was the cause of the child's conception and birth. (5) The plaintiff was born with a rare chromosomal disorder known as `Cri du Chat syndrome', with symptoms including both intellectual and motor disability, speech and language impairment, hyperactivity, sleep disorders and various other conditions.

In Harriton, the plaintiff's mother was wrongly advised that an illness she had contracted during the first trimester of pregnancy was not rubella. The child was born blind and deaf with significant physical and mental impairment. Her condition was such that she would require 24 hour a day care for her entire life, with no prospect of improvement. The parents were barred by the Limitation Act 1969 (NSW) from bringing a separate claim, as the plaintiff was 21 years old at the time of the hearing.

Waller arose in the context of in vitro fertilisation. The plaintiff's father suffered from antithrombin 3 (AT3) deficiency, known to the defendants but not investigated, which was passed to the plaintiff. Several days after birth the plaintiff suffered a cerebral thrombosis, resulting in permanent brain damage, cerebral palsy and uncontrolled seizures. Had the parents been advised that the AT3 deficiency was genetic and could be passed to their child, they would either have deferred egg harvest or embryo transfer until suitable testing for AT3 was identified, or else have used donor sperm. The plaintiff claimed general damages, economic loss and Griffiths v Kirkemeyer (6) damages for gratuitous domestic and nursing services.

III THE STATE OF THE LAW

Given that there were no binding Australian decisions on the issue of wrongful life, (7) Studdert J conducted an extensive review of decisions in wrongful life cases across a range of other jurisdictions. I shall focus upon cases from the England, the United States and France.

A England

The decision of the Court of Appeal in McKay v Essex Area Health Authority (8) is the most influential precedent on the subject of wrongful life. McKay was the first case in England in which the novel cause of action was considered and its arguments against the recognition of wrongful life claims have convinced judges (9) and legislators (10) around the common law world.

Like Harriton, McKay concerned a child whose severe disabilities resulted from rubella. The child plaintiff sued both the hospital laboratory operated by the defendants and her mother's treating doctor. The laboratory's alleged negligence lay in failing to make or interpret the tests of the mother's blood samples or to inform the doctor of the results, whilst the doctor's alleged negligence concerned a failure to advise or inform the mother of the desirability of an abortion.

I shall now examine the principal arguments put forward in McKay, concerning issues of duty of care, the nature of the harm suffered and questions of public policy.

(1) Duty of Care

It was conceded in McKay that a duty of care was owed to the unborn child by both defendants. Cases such as Watt v Ramaa, (11) Burton v Islington Health Authority, (12) de Martell v Merton & Sutton Health Authority (13) and X and Y (By Her Tutor X) v Pal (14) placed the existence of such a duty beyond dispute. The duty may even exist and be breached prior to a plaintiff's conception. (15) In the Court's opinion in Edwards, this duty was confined to a responsibility not to injure the child, whether by act or omission, before or after birth. (16) It was accepted that a duty would lie, for example, in cases such as those involving the drug thalidomide. (17)

The child's right not to be injured before birth had not been infringed by either defendant in McKay, so that

[t]he only right on which she can rely as having been infringed is a right not to be born deformed or disabled, which means, for a child deformed or disabled before birth by nature or disease, a right to be aborted or killed. (18) In both McKay and Harriton it was argued that the duty was not so extensive, but could be confined to a duty to give the mother an opportunity to choose whether or not to abort. In Harriton, the mother and child were said to be a `unity in duality' during the pregnancy, with the mother acting as agent for the child. (19) Therefore the duty owed to the child was identical to that owed to the mother. Nonetheless, it is clear that, as with other loss of chance cases, it is fundamental to the success of such claims that the plaintiff establish that she would have actually exercised the lost opportunity had she been correctly advised. (20) The distinction then rests not on whether to abort but on whether the decision to abort lies with the doctor or the mother. In both situations, the outcome for the unborn child is the same. Stephenson LJ in McKay held that neither defendant owed the child a duty to give the mother an opportunity to abort, even though that duty may be owed to the mother, reasoning that

[t]o 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...