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Reproductive Health » Wrongful Birth and Wrongful Life

Legislation

Civil Liability Act 2002 Part 11 NSW
Parents are limited in the amounts they may claim for wrongful birth. Parents may only claim for recovery of additional costs associated with rearing or maintaining a child suffering from a disability that arise by reason of the disability.

Cases

Cattanach v Melchior Cth
High Court
In cases where an unplanned child is born following the negligence of a practitioner (in this case in failing to sterilise the parent) the parent can claim damages for the cost of raising the child.

Harriton v Stephens [2006] HCA 15 Cth
High Court
Held that claims for wrongful life are not actionable in Australia. Case where doctor failed to diagnose rubella, plaintiff claimed they would have terminated the pregnancy.

Waller v James [2006] HCA 16 Cth
The negligence in this case related to the failure of IVF technicians to advise the parents to screen for a genetic disorder carried by the father. The disorder (AT3 deficiency) was a clotting disorder which later caused brain damage in the child when it was born. The High Court refused to recognise the claim, primarily on the basis that there was no way to calculate the difference between the pre-tort position of the child (namely, not being born) with the post-tort position of the child (living with a disability).

Farraj v King’s Healthcare NHS Trust [2006] EWHC 1228 (QB) UK
The plaintiffs argued that their child had been negligently screened for beta thalassaemia major (BTM). Wrongful birth claim caused by negligent genetic screening.

Papers, Reports and Books

Rights and Responsibilities in wrongful birth/wrongful life cases
Hirsch
UNSW Law Journal 29(2)

Wrongful life claims: dignity, disability and “a line in the sand”
Neville and Lokuge
MJA 185(10) 2006

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