This paper will consider the law of medical negligence in tort for ‘wrongful birth’ and how it differs in countries like Australia and the United Kingdom specifically. In the 21st century, such medical negligence actions are controversial and comes under much scrutiny due to advancement of research and development as well as medical technology to detect deficiencies in unborn children at an early stage.  As such, medical practitioners are often faced with more responsibilities to provide adequate and accurate information to parents to be able to make an informed decision.
The most controversial area is the issue of compensation of childbearing costs. It will be shown in this paper that the courts, wrongful birth claims are treated slightly differently in these two countries. This could be due to countries functioning under varying legal systems, scale of how advance medical technology is in these countries and so on.
It is useful to note that wrongful birth is distinguished from wrongful life in which the claims are brought by the child with the disability. This claim puts forth that if the medical practitioner had been able to detect the specific condition that resulted in the disability, actions could have been taken to prevent the child from entering the world.
. For the purpose of this paper, we will not be examining the wrongful life claim. However, the difference in the two should be noted.
Development of the Terms in UK & Australia
It should be noted that in the current situation, ‘wrongful’ does not fall under the term of being ‘unlawful’ but instead it is often unintentional.
In the UK, there are three significant characteristics of wrongful conception and wrongful pregnancy cases. First, the parents make a conscious effort to prevent getting pregnant. Secondly, there are two ways as to how a woman unintentionally becomes pregnant. One case involves the negligence of a sterilisation procedure (for a woman) or a vasectomy procedure (for a man). In the former case, a woman who believes she is sterile subsequently becomes pregnant due to the negligence of the doctor performing it.  In the latter case, the doctor’s negligence was in failing to properly advice his patient of the risk of failure.
The third characteristic is that no child was wanted regardless of whether it was healthy or not.  It is evident that the English law treats wrongful conception/pregnancy claims and wrongful birth claims separately.
In Australia, the law is generally the same as the English. However, the main difference is that wrongful conception/pregnancy and wrongful birth is treated equally when claims are brought in.
Hence, wrongful birth comprises of all three scenarios. Within the area of wrongful birth claims Australian law breaks it down into two categories.  Firstly, such a claim arises when a medical practitioner fails to perform a sterilisation procedure with due diligence and subsequently results in a healthy child being born.  An example of this is the High Court of Australia decision in Cattanach v Melchior.  The High Court reached a decision to allow parents to claim damages for childbearing costs. Secondly, there are situations where a medical practitioner fails to provide adequate information of the disability, resulting in the parents not being able to make an informed decision as to abort the child or not.  In both scenarios, negligence of the medical practitioner is not considered as he/she did not cause the deficiency in the child. 
‘Wrongful birth’ in United Kingdom
3.1 Birth of a Healthy Child
Previously in the United Kingdom, such claims were decided based on contract law, which has now been abolished and it brought under the tort of negligence. 
Sciuriaga v Powell  was a landmark case as it was first of its kind to come before the English courts. In this case, the mother did not claim childbearing costs. Consequently, only damages relating to pain and suffering she suffered as a direct cause of failure to carry out the procedure properly were awarded. In this case the mother had undergone an abortion procedure which was negligently conducted by the doctors involved and a healthy baby was born due to the failed procedure.
Childbearing costs relating to wrongful birth claim came under scrutiny before the English courts in Udale v Bloomsbury Area Health Authority.  Mrs Udale underwent a sterilisation procedure that was negligently performed and subsequently a healthy child was born. Jupp J commented that ‘the birth of a child, whether healthy or disabled, was a blessing and an occasion for rejoicing.’  Consequently, ‘for public policy reasons, recovery should not be allowed.’  Similarly, the Queen’s Bench Division took the same view and refused the recovery of those costs. This issue of public policy however, was subsequently overruled by Emeh v Kensington & Chelsea and Westminster Area Health Authority. 
The question of compensation with reference to wrongful birth was first considered in 2000 by the House of Lords in McFarlane v Tayside Health Board  . This case concerned a married couple, who had been assured by doctors employed by the Health Board that the husband was no longer fertile after conducting a vasectomy operation. Sometime later, the wife became pregnant and a healthy child was born in May 1992. Mr and Mrs McFarlane claimed general damages of £10,000 for the pain and distress suffered by Mrs Mcfarlane during the pregnancy and birth and an additional £100,000 to cover cost already incurred and costs that will be incurred in the future in bringing up the child.
Lord Slynn of Hadley, Lord Steyn, Lord Hope of Craighead and Lord Clyde (with Lord Millett dissenting) decided that ‘costs associated with the birth of a healthy but unwanted child, was not recoverable in tort.’  However, they had different reasoning.
Majority of the judges based their decision on reasons relating to recovery for economic loss. But only Lord Steyn, Lord Hope of Craighead and Lord Millett pinpointed the notion of pure economic loss. Although the Law Lords emphasised their decision was made on the basis of principles of economic loss, still it is apparent that all judges included policy considerations in their opinions. Evidently, it is obvious that main issue in this case were policy considerations instead of reasons relating to pure economic loss.
This was followed by Rand v East Dorset Health Authority  , involving the negligent anti screening for a foetus with Downs’ Syndrome. The mother said she would have opted for a termination but for this negligence. Notwithstanding McFarlane, the parents recovered an award for financial consequences flowing from the child’s disability, which the judge held to be different in principle from awarding damages in consequences of the child’s existence.
Similarly the recent case of Rees v Darlington Memorial Hospital NHS Trust  dealt with the claim of a disabled mother for childbearing costs after a failed sterilisation procedure subsequent to which she gave birth to a healthy child. The Rees case is a factual variant from the McFarlane case because in the former the mother was disabled whereas in the latter, she was healthy. Lord Hope of Craighead was the only judge who openly referred to childbearing costs as pure economic loss. Furthermore it is interesting to note that many Law Lords discussed the award of a nominal award, and infact some even approve it. One can also note that every decision involves policy considerations because judges consider public policy either openly or because they base their opinion on the ‘fair, just & reasonable’ test used in relation to economic loss which was laid down in Caparo Industries and Murphy v Brentwood District Council
3.2 Birth of a Disabled Child
In the case of Emeh, as discussed above, the Court of Appeal allowed recovery for the full costs of maintaining a child. The judges overrule Udale  because they came to a conclusion that in the case of a disabled child, recovery for upbringing costs was not barred by public policy.  They rejected the notion of Udale  , which stated that public policy could prevent a claim for childbearing costs regardless of whether or not the child is disabled.  Furthermore, they commented that childbearing costs were economic loss, flowing directly from the pregnancy and birth and consequently they were recoverable. 
‘Wrongful birth’ in Australia
The Australian approach is slightly similar to the English approach as they both follow the common law system. However, there are some vital differences which we will consider in the following section of the paper.
In the wrongful conception case of Veivers v Connolly  the mother was entitled to recover childbearing costs for her disabled child. In this case, the consultant negligently misdiagnosed rubella. As a consequence, the mother gave birth to a severely handicapped child. She then filed for an action in wrongful birth. 
Subsequently in the case of CES v Superclinics,  the Supreme Court of New South Wales held that damages for childbearing costs could not be recovered. In this case, a medical clinic failed on many separate occasions to diagnose that the woman was pregnant. When it became apparent that she was pregnant, it was too late for her to terminate the pregnancy legally.  She then gave birth to a healthy child. The Supreme Court of New South Wales rejected the claim. Newman J reasoned that the ‘common law did not categorise the loss of an opportunity to perform an illegal act as a matter for which damages may be recovered.’ 
When the case came before the Court of Appeal, Priestley JA raised the idea that the parents of the child could have put the child up for adoption.  He went on to add that if the parents failed to give the child up for adoption, they have failed to act reasonably. However, the parties settled the case on undisclosed terms before hearing of the appeal was completed.  Therefore, it remains uncertain as to how such cases should be approached.
The recent case of Cattanach v Melchior  is the first case in the area of wrongful birth to come before the High Court in Australia. Here the court held that the parents could recover the costs of raising a healthy born child until adulthood.  In this case, Mr and Mrs Melchior brought an action against the consultant, Dr Cattanach, after Mrs Melchior gave birth to their healthy third child, five years after the laparoscopic sterilisation performed by the named doctor. The procedure failed because the doctor had failed to take into account the fact that Mrs Melchoir still had one active fallopian tube. However, the doctor’s negligence was not challenged by the High Court. Rather the issue to be solved was the award for damaged of childbearing costs. The majority held that those damages were indeed recoverable. 
There was however some disagreement regarding the characterisation of the childbearing costs among the High Court judges. Majority (except Callinan J) held that it was not pure economic loss. The cost for maintaining a child may seem to be adequately related to related to the original damage to prevent the claim being qualified as one established on pure economic loss. 
Contrary to judges in the House of Lords decision in McFarlane, the High Court in Cattanach v Melchoir considered policy issues openly. This was only possible because Australian law does not apply the three-stage test set out in Caparo Industries Plc. v. Dickman.  Hence, the discussion of public policy concerns did not need to be ‘disguised’ in reasoning relating to ‘justice, fairness and reasonableness’.
Difference in claims in Australia and UK
As discussed above, both countries term wrongful birth differently. In Australia, it is defined as where the mother has been harmed, irrespective of whether the child is born healthy or disabled. In contrast, the English law takes a dualistic approach and still adheres to the different definitions of ‘wrongful pregnancy/conception’ and ‘wrongful birth’. 
Recoverability of Childbearing Costs
Under English law, compensation for the birth of a healthy child is denied because it cannot constitute a damage.  Only the additional costs for maintaining a disabled child can be claimed. In view of that, one can clearly distinguish cases where courts are willing to grant damages, following Parkinson.  It is submitted that English law discriminates disabled people simply by the fact that courts distinguish in their reasoning between healthy and handicapped children. This approach however seems out-dated in today’s society. Therefore, it is suggested that English courts shall deviate from this approach.
In Australia, the parents can claim full compensation for upbringing costs. Here, the relevant precedent is Cattanach.  Australia has realised that childbearing has to do with both, sacrificial love as well as paying for raising the child.
Reasoning regarding the compensation
The main difference between the two countries is the policy considerations. English law applies the three-stage test whereas Australian law does not. Hence, it is possible for Australian courts to discuss policy considerations openly and not ‘disguised’ in the three-stage test.
In conclusion, one can say that despite the differences in the legal systems, both countries share the opinion that the fundamental value of every human being has to be protected to a large extent. Both countries accept the fact that life per se is not damage. Australia believe that the costs flowing from the unwanted new life are compensable damage. English law on the other hand supports the opinion that every child is a blessing, no matter whether it is wanted or unwanted, healthy or disabled.