Wrongful birth is the term used by the courts to describe a claim that arises out of the birth of a child who wouldn't have been born without negligent treatment.
Wrongful birth is a legal cause of action that allows the parents of a congenitally diseased child to claim that their treating clinicians failed to properly warn them of their risk of conceiving or giving birth to a child with serious genetic or congenital abnormalities.
If a prospective mother is concerned that she could be a carrier of a genetic disorder, she would normally turn to a medical professional for advice with a view to investigating it. A failure to carry out the relevant testing, or to advise of the implications of the results of such testing, may give rise to an action for medical negligence.
This was the case in MNX v Hafshah Khan [2017]. The Claimant was aware that her nephew had been born with haemophilia, and she consulted her GP with a view to establishing whether she was a carrier of the haemophilia gene.
Her GP arranged for a blood test to be carried out and the result came back negative. This led the Claimant to believe that if she got pregnant then any child she carried would not suffer from haemophilia. However, what she was not told about was that the test could only establish whether a patient had haemophilia, it did not confirm whether they were a carrier of the haemophilia gene.
The Claimant became pregnant and had a son, who was born with haemophilia. He also suffered from autism, which was unrelated to his haemophilia.
The Claimant brought a clinical negligence claim against the GP for wrongful birth. She alleged that had she been told that she was a carrier of the haemophilia gene then she would have undergone foetal testing for haemophilia which would have revealed that the foetus was affected. In those circumstances, she said that she would have terminated the pregnancy and her child would not have been born.
Prior to going to Court the parties agreed that the Claimant was entitled to recover any additional costs arising out of her son's haemophilia diagnosis, as well as general damages for going through with the pregnancy.
The only issue for the Court to decide was whether "a mother who consults a doctor with a view to avoiding the birth of a child with a particular disability… could recover damages for the additional costs associated with an unrelated disability." If the answer was "yes" then it would lead to a damages award of £9m, whereas a "no" would lead to a £1.4m award for the haemophilia only.
The Court found that it was the Defendant's duty to provide the Claimant with the necessary information to allow her to terminate any pregnancy afflicted by haemophilia. Had she known she was a carrier, she would have undergone foetal testing and would have then terminated this particular pregnancy. The other risks associated with that pregnancy would no longer have existed. This is the "but for" test. But for the doctors negligence the Claimant's son would not have been born.
The negligence of the doctor to inform the Claimant of the risk of haemophilia led to her son being born with that and with autism. The Claimant was entitled to recover damages for all the natural consequences of her pregnancy and damages were assessed at £9m.
It seems appropriate and fair that if a child has been born with a disability as a result of a doctor's negligence, the negligent party is liable for all costs, including additional costs in relation to an unrelated condition, in this case, autism. Unfortunately, the Defendant did not share this view and the case was appealed.
The Court of Appeal held that the Judge had misapplied "the scope of the duty" test. They said that rather than the "but for" test the court should have considered what the extent of the doctor's duty was and they said that the doctor should only be responsible for the losses that flowed from that duty.
The Court found that the doctor was only asked to investigate whether the Claimant was a carrier of the haemophilia gene. The Defendant's duty did not extend to providing any information about other risks of pregnancy. These were outside the limits of the treatment which had been sought and the development of autism was a coincidental injury.
The outcome of the appeal raises a pertinent question: does a mother, who was deprived of the opportunity to terminate her pregnancy because of a doctor's negligence, have to bear the costs associated with an unrelated condition? Perhaps this is a question that the Justices of the Supreme Court should answer.
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