WRONGFUL BIRTH

‘Wrongful birth’ is a claim that parents make if they are alleging that the wrongful conception or birth of their child was caused by the negligence of a doctor or medical facility. It involves circumstances in which the negligence of the doctor/medical facility prevented the parents from properly attainingcontraception or abortion. Both the mother and the father can sue for wrongful birth damages.

Cases of ‘wrongful birth’ fall under two categories. The first is where the parents allege that the doctor/medical facility was negligent prior to conception (a common example being whenthe doctor fails to properly sterilise one of the parents). The second is where the parents allege that the doctor/medical facility was negligent in the period between conception and birth (a common example being when the doctor fails to notify the parents of fetal abnormalities that would have convinced them to have an abortion).

The amount of damages that can be awarded for a successful claim of ‘wrongful birth’ is limited in New South Wales by section 71 of the Civil Liability Act 2002 (NSW). Due to this section, the court cannot include in the damages payment:

  • Any monetary cost that the parent(s)/guardian(s) will incur in raising the child (unless the child has a disability, in which case the additional cost of catering for this disability can be included in the payout); or
  • Any money not earned due to having to raise the child.

The law of ‘wrongful birth’, besides being very morally contentious issues, varies from case to case depending on the circumstances of the child, the parents and medical technology. It is therefore highly recommended that you consult a legal professional about medical negligence claims before taking any legal steps.