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Abstract If a healthy child born as a result of clinical negligence in family planning techniques is a "blessing" which should not resound in child maintenance damages, can an exception be created for the birth of a disabled child? If so, should the law then permit a further exception for the disabled parent of a healthy child? And, even if the healthy child is not the proper subject-matter of compensation, is this the same as saying that those who actively sought to avoid parenthood suffer no "harm" at all? Exploring a line of decisions in the UK where such questions have recently arisen, the author discusses the problematic development of the reproductive torts and the question as to what claimants might now expect to recover when their reproductive plans to avoid parenthood are set-back.
Introduction: Discussion of the Opinion
If a healthy child born as a result of clinical negligence is a "blessing" which should not resound in child maintenance damages, can one create an exception for the birth of a disabled child? If so, should the law then permit a further exception for the disabled parent of a healthy child? And, even if the healthy child is not the proper subject-matter of damages, is this the same as saying that those who actively sought to avoid parenthood suffer no loss at all? Over the last six years, such questions have arisen in the English courts following the ruling of the UK's highest appellate Court, the House of Lords, in the case of McFarlane v Tayside Health Board ([2000] 2 AC 59). Departing from the normal principles of tort law, their Lordships in this case determined that parents of an unplanned but healthy child born as a result of a wrongful conception were no longer entitled to recover damages reflecting the costs of its maintenance. That McFarlane did not straightforwardly apply to cases where either the child or the parent is disabled, not only led to the lower courts creating a series of difficult exceptions, but culminated in a second House of Lords' ruling on this subject in the case of Rees v Darlington Memorial Hospital NHS Trust ([2003] UKHL 52). While various commentators reflecting on the case of Rees have claimed that...