United Kingdom Journals

		[2000] 3 Web JCLI

McFarlane v Tayside Health Board: A Wrongful Conception in the House of Lords?

Dr Alasdair Maclean BSc. MBBS, DA, PGDip Law

Ph.D candidate / Part-time lecturer
Department of Law
University of Southampton
<rhu@soton.ac.uk>

Copyright © 2000 Alasdair Maclean.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

The House of Lords, in McFarlane v Tayside HB [1999] 3 WLR 1301, has overturned what, for the last 15 years, had been thought to be settled law (since the Court of Appeal judgment in Emeh v Kensington, Chelsea and Westminster Area Health Authority [1985] QB 1012; see discussion in Donnelly 1997, p 14-16) . Their Lordships have decided that in claims for wrongful conception and wrongful birth the maintenance costs are pure economic loss and are not recoverable in tort. Three of the five Law Lords based their arguments on the principle of distributive justice while the other two argued that liability was not "fair, just and reasonable". All five relied heavily on "morality" to justify their conclusion that the plaintiffs should not recover. However, since pregnancy was a type of "physical" damage the plaintiffs were allowed to recover for all losses that flowed directly from that pregnancy. All their Lordships denied that public policy had a role in the decision. This commentary considers the different arguments used by their Lordships and concludes that their decision not to allow recovery was flawed, and that it would have been preferable to have followed the benefits rule rather than the limited damages rule. A further difficulty with the decision is that it might also jeopardise recovery for the maintenance of a handicapped child.

Contents

1. Introduction
2. The facts
3. The decision
4. Discussion

a. Prior legal authority
b. Rejection of no recovery
c. Rejection of full recovery and the benefits rule
d. The limited damages rule

(i) Pure economic loss
(ii) Unjust enrichment
(iii) The moral question
(iv) Scale of damages
(v) Incoherence with wrongful life claims
(vi) Judicial disquiet

e. The handicapped child

5. Conclusion

Bibliography

1. Introduction

Whether the "blessing" of a child can be a legally recognised type of damage has been debated since the 1930s (Symmons 1987). At one time or another the courts have given credence to each of three possible positions. These are:

1. Neither wrongful conception (a pregnancy resulting from the defendant's negligence) nor wrongful birth (the birth and consequential expenses of raising the child) are legally recognised types of damage in the tort of negligence.⁽¹⁾ Although the English courts have never adopted this position it reflects the current law in the state of Nevada, USA: Szkeres v Robinson (1986) 715 P 2d 1076.

2. Both wrongful conception and wrongful birth are legally recognised types of damage: Emeh v Kensington and Chelsea and Westminster Area Health Authority [1985] 2 WLR 233;

3. Wrongful conception, but not wrongful birth, is a legally recognised type of damage: Udale v Bloomsbury Area Health Authority [1983] 1 WLR 1098.

It would be untenable for a modern court to argue that a pregnancy could not be unwanted given the legality, widespread use of and the clear community benefits of family planning. As might be expected, the English cases decided in the 1980s rejected the first option. In Sciuriga v Powell (1979) 123 SJ 406 the Court of Appeal allowed damages for losses arising directly from the pregnancy. There was no claim for the cost of raising the child. This issue was first considered in Udale and the court held that the maintenance costs were not recoverable because: "it was contrary to public policy as being disruptive of family life and contrary to the sanctity of human life". This was rejected by the Court of Appeal in Emeh and by both the High Court and Court of Appeal in Thake v Maurice [1985] 2 WLR 215. In Gold v Haringey HA [1988] 1 QB 481 the Court of Appeal, although not without a hint of disapproval, acknowledged that: "At one time there was a conflict of decisions at first instance as to whether it was against public policy to allow a plaintiff to recover damages for the birth of a healthy child. But that conflict has been resolved, so far as this court is concerned, by the unanimous decision of this court in Emeh..." (at 484 per Lloyd LJ). It thus seemed settled that both wrongful conception and wrongful birth were legally recognised types of damage, except, as Donnelly notes, "in the unlikely event of the House of Lords overruling any of these decisions" (Donnelly 1997, p 15-16). The House of Lords decision in McFarlane v Tayside HB was one of those "unlikely events".

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2. The facts

The plaintiffs were husband (P1) and wife (P2). They already had four children and, having decided to move to a larger house, P2 returned to work in order to meet the increased financial commitments. They decided not to have any further children and P1 underwent a vasectomy. The plaintiffs were advised to take contraceptive precautions until sperm samples were analysed. P1 was later told that his sperm count was negative and he no longer needed to take contraceptive precautions. The plaintiffs followed this advice and P2 became pregnant.

At first instance, ([1997] SLT 211) Lord Gill dismissed the claims. He decided that pregnancy and childbirth did not constitute a personal injury and "the privilege of being a parent is immeasurable in monetary terms; [and] that the benefits of parenthood transcend any patrimonial loss" ([1997] SLT 211 at 216 per Lord Gill). This was reversed on appeal and the Inner House held that the benefits of parenthood could not outweigh the damage caused by the unwanted pregnancy ([1998] SLT 307 at 308). The defendants appealed.

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3. The decision

The House of Lords held that the appeal on the claim for solatium - the wrongful conception claim - would be dismissed. The appeal on the claim for the cost of raising the child - the wrongful birth claim - would be allowed. The majority (Lord Milllet allowed damages but dissented on the basis for recovery - see 3.b. below) argued that, because the pregnancy and birth were precisely the unwanted events that the vasectomy was supposed to prevent, P2 could recover for the pain, discomfort and inconvenience of the pregnancy and for any expenses that arose directly as a result of the pregnancy. However, the House of Lords was unanimous that neither P1 nor P2 would be allowed to recover the cost of raising the child. Lords Slynn and Hope held that it was not "fair, just and reasonable" for the doctor or Health Board to be liable. Lords Steyn, Lord Clyde and Lord Millett argued that the principle of distributive justice prevented the claim from succeeding.

4. Discussion

a. Prior legal authority

Their Lordships reviewed the case-law throughout the common law and the European civil law jurisdictions. They concluded that, from a comparative point of view the legal position of such claims was uncertain. As Lord Slynn concluded: "It seems to me from this... that the law is still developing and that there is no universal and clear approach" (at 160). Their Lordships noted four possible formulae:

1. No recovery for either wrongful conception or birth;
2. Recovery allowed both for wrongful conception and wrongful birth (full recovery - the UK position prior to this case);
3. Full recovery for the wrongful conception but recovery for the wrongful birth should be offset against the benefits gained from having a healthy child (the benefits rule);
4. Recovery only allowed for the wrongful conception. No recovery for the wrongful birth (the limited damages rule).

b. Rejection of no recovery

Their Lordships unanimously rejected the first of these options. As Lord Hope stated (at 168): "The fact is that pregnancy and childbirth involve changes to the body which may cause, in varying degrees, discomfort, inconvenience, distress and pain. Solatium is due for the pain and suffering which was experienced during that period". Lord Millett took a more esoteric route to find that damages were recoverable for the unwanted pregnancy. He argued that the pregnancy was as much a part of parenthood as child-rearing and if the one could not be allowed then neither could the other. Instead he argued (at 182): "they have suffered both injury and loss. They have lost the freedom to limit the size of their family. They have been denied an important aspect of their personal autonomy. Their decision to have no more children is one the law should respect and protect".

Both of these approaches are correct. First, the judgment of the majority reflects the prevalence of contraceptive advice and treatment. As Norrie argues: "Once family planning is accepted as a good, its failure can logically be regarded as a bad" (Norrie 1991, p142). Likewise, in the first instance hearing of Thake, Pain J. states (at 230): "By 1975 family planning was generally practised... Vasectomy was one of the methods of a family planning which was not only legal but was also available under the National Health service. It seems to me to follow from this that it was generally recognised that the birth of a healthy baby is not always a blessing". Second, Lord Millett's argument, although it does not specifically mention them, appears to be motivated by human rights. Given the advent of the Human Rights Act 1998 this is a welcome approach that is consistent with recent decisions (see e.g. R v North & East Devon HA ex p Coughlan [2000] 2 WLR 622) and helps to smooth the way for the transition to a rights based approach under that Act.

c. Rejection of full recovery and the benefits rule

Their Lordships' rejection of the second and third options has been criticised. One commentator wrote: "I can think of few decisions that are - to their very core - as odious, unsound, and unsafe as this one" (Cameron-Perry 1999, p 1888). But, is their Lordships' decision that bad? Their Lordships' decision has overturned what had been relatively settled law for 15 years. It had seemed so settled that, writing in 1997, Donnelly states "the policy debate in England appears to be concluded" (Donnelly 1997, p 16). Their Lordships, however, far from agreeing that the policy matter was settled argued that: "The question for the court is ultimately one of law, not of social policy. If the law is unsatisfactory, the remedy lies in the hands of the legislature" (per Lord Hope at 172). Lord Clyde also argued that: "Particularly where consideration of public policy can be invoked by both sides to the dispute, it seems to me that to proceed upon such ground is unlikely to lead to any confident solution".

The avoidance of policy issues is consistent with the Court of Appeal's argument in Emeh. However, this approach has been strongly criticised. Symmons argues "As the examination of policy factors has shown, for every "policy" factor that has been thrown onto the scales to deny liability, the plaintiff or the court has been able either to dispute its alleged efficacy or to conjure up a countervailing one to redress the balance. It may, then, be argued that at the end of the day, however many policy factors are adduced, they are all cancelled out eventually (as, e.g. in Thake), so requiring a reversion to principle... Such a downgrading of policy considerations - although perhaps understandable in the light of diversity of judicial opinion in this area - is, in the writer's view, to be deplored if facile conclusions are to be avoided in this still developing area of tortious liability" (Symmons 1987, p 305).

Two of their Lordships' opinions were based on it being not "fair, just and reasonable" to impose a liability on the doctor and Health Board. Lord Clyde argued that it would not be fair to award damages for the birth of the child without taking into account the benefits gained from having the child. Since "the value which is to be attached to these benefits is incalculable" they cannot be offset against the damages so damages cannot be awarded because they would unjustly enrich the plaintiffs. Unfortunately, their Lordships failed to consider that the detrimental side of childrearing is not purely economic. There are many practical detriments such sleepless nights, supervisory responsibilities, providing a taxi service etc. As Donnelly argues "Non-pecuniary benefits should be offset against non-pecuniary damages... Because neither ... can be assessed with certainty, one should be presumed to cancel out the other. Thus the court will not have to become involved in the unhappy exercise of evaluating parental distress and children's worth. Instead, a court can arrive at a figure which is fair compensation for the economic loss of the parents" (Donnelly 1997, p21). Their Lordships' failure to consider these non-pecuniary detriments must raise doubts about their conclusions on fairness. Furthermore, in adopting the viewpoint of the "traveller on the Underground" their Lordships have only considered one side of the moral argument (see: 3.d.(iii) below). Both sides of the moral argument should be considered if a "fair" result is to be achieved.

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d. The limited damages rule

All of their Lordships considered that because the benefits of having a child were incalculable in monetary terms it would not be possible to offset them against an award. This left the only two options of complete recovery for child maintenance or no recovery. Their Lordships chose the limited damages rule which allows recovery for losses flowing directly from the pregnancy but none for child maintenance. As discussed above, two judges opted for an argument based on the "fair, just and reasonable" criterion. The others, however, chose the road of distributive justice. In doing so they continued a line of argument that had been used by Lord Steyn in Frost v Chief Constable of South Yorkshire Police [1998] 3 WLR 1509 to prevent police officers involved in the Hillsborough disaster from recovering for psychiatric damage when the victims' families had not. Lord Steyn stated in McFarlane, "It is possible to view the case simply from the perspective of corrective justice. It requires somebody who has harmed another without justification to indemnify the other. On this approach the parent's claim for the cost of bringing up Catherine must succeed. But one may also approach the case from the vantage point of distributive justice. It requires a focus on the just distribution of burdens and losses among members of a society" (McFarlane v Tayside HB [2000] SLT 154 at 165). This, he argued, is a moral theory that required an answer to the question: "Should the parents of an unwanted but healthy child be able to sue the doctor or hospital for compensation equivalent to the cost of bringing up the child?" In order to obvert the criticism of judge-made morality he considered this from the perspective of the "traveller on the Underground" whom he felt sure would instinctively reply "that the law of tort had no business to provide legal remedies consequent upon the birth of a healthy child, which all of us regard as a valuable and good thing".

It is true that, as Lord Steyn notes (at 165) "tort law is a mosaic in which the principles of corrective justice and distributive justice are interwoven". Even in this case their Lordships have adopted a mixed approach. Having labelled the cost of raising the child as pure economic loss they have applied corrective justice principles to the "physical" damage of pregnancy and distributive justice principles to the pure economic loss of raising the resultant child. There appear to be six reasons for the decision that the parents should bear the full cost of child maintenance:

1. Child maintenance is pure economic loss;
2. The unjust enrichment that would result from compensating the parents for child maintenance costs;
3. The moral intuition ascribed to the "traveller on the Underground";
4. The potential scale of the damages;
5. The incoherence of allowing a claim for wrongful birth but not wrongful life;
6. Judicial disquiet with the award of maintenance damages.

(i) Pure economic loss

Rather than worry about whether the loss is purely economic, it is submitted that the correct approach is the one taken by Lord Millett. He argued that the distinction between pure and consequential economic loss is artificial and irrelevant since the "conception and birth are the very things that the defenders'... were called upon to prevent. In principle any losses occasioned thereby are recoverable however they may be characterised" (at 179).

(ii) Unjust enrichment

As Donnelly states persuasively, "It is appropriate that a court take account of the benefit of the child to the parents because the alternative would result in undue enrichment... However, in calculating the benefits, it is necessary to distinguish between benefits which are pecuniary and those which are not. Pecuniary benefits resulting from the birth of the child should be offset against damages for child-rearing costs. Thus, children's allowance and other financial benefits should be taken into account in assessing damages" (Donnelly 1997). Their Lordships have been too ready to accept the easy option that, because the benefits are incalculable in monetary terms, the whole balancing act is doomed to failure. Perhaps from the skewed masculine viewpoint of a father whose almost exclusive role lies in economic provision, they have failed to take into account the considerable non-pecuniary detriments that come with parenthood (see earlier). The non-pecuniary detriments, when properly considered, might be acknowledged to effectively balance out the non-pecuniary benefits leaving the scales of the balance to weigh only the pecuniary benefits and detriments. As Norrie argues "it should be recognized that the approach [of loss/benefit balancing] reflects a policy judgement of the court rather than the legal principle of offsetting benefits and losses. The judgement has been made that a certain event, childbirth, ought always to be regarded as a greater benefit than all the tangible losses it causes. But that judgement is inconsistent with other policies now accepted by the law" (Norrie 1991, p 142).

(iii) The moral question

The suggestion that the "traveller on the underground" will conclude that the parents of a healthy child should not be compensated when the child is conceived through the negligence of the doctor is a spurious claim which is completely unsubstantiated by any evidence. It is, in reality, their Lordships' personal pro-life view disguised to appear objective. This judicial sleight-of-hand fools no-one. Furthermore, the substance of the moral answer is questionable. As Dickens notes, "Underlying judicial refusal to award damages to cover costs of rearing a healthy child... is the view that all human life is a gift or blessing... However, this celebration of children denies the compatible social and legal reality that many conscientious, responsible couples do not want children either at all or at particular times" (Dickens 1990, p 87). Dickens further argues that⁽²⁾: "Even if it is accepted, however, that birth of a child is a blessing, it does not follow that it should not be the subject of damages representing costs of child-rearing. One commentator has correctly noted that

"No court would be moved by the argument coming from a putative father that he should not be required to provide financial support for the child he has fathered on the grounds that he has bestowed on the mother a priceless blessing" (Dickens 1990 at p 89).

Thus, this argument is equally unconvincing.

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(iv) Scale of damages

Their Lordships had two concerns. First, they felt that it was unfair to expect doctors to be liable for potentially large sums in damages subsequent to a minor procedure. It is inconsistent with other areas of tort law, e.g. the egg-shell skull rule, to deny liability on this basis. The aim of damages in tort is to return the plaintiff to their pre-tort position. This aim takes no account of the magnitude of the misdeed relative to the cost of making good the plaintiff's deficit. Even Lord Millett recognised this when he stated: "I am also not persuaded by the argument that the remedy is disproportionate to the wrong" (at 179).

The second concern was simply that the potential scale of the damages could be excessively high. It was fuelled by Benar v Kettering Health Authority (1988) NLJ 179 in which Hodgson J. allowed damages for the cost of the future private education of the child. This worry, however, does not necessitate the complete negation of liability. Instead the court could assess damages objectively rather than subjectively (Donnelly 1997).

(v) Incoherence with wrongful life claims

The argument is that wrongful birth claims rely just as much as wrongful life claims on the "repugnant" notion that it would have been better had the child never been born. There are two alternatives to consider: first, wrongful life claims are made by the child and not the parent. This means the perspective is completely different. It does not logically follow that because it is "repugnant" for the child to claim that he has been damaged by being born that it is "repugnant" for the family to claim that they have suffered a loss by conceiving a child after they had acted specifically to avoid such a situation. Alternatively, the idea that a human life can never be recognised as a harm when compared to not being alive is inconsistent with the judgments concerning patients with severe mental handicap. In Re B (a minor) (wardship: medical treatment) [1990] 3 All ER 927, Templeman LJ stated `It is a decision which of course must be made in the light of evidence and the views expressed by the parents and doctors, but at the end of the day it devolves on this court in this particular instance to decide whether the life of this child is demonstrably going to be so awful that in effect the child must be condemned to die'(Re B at 929). This dictum was supported by Lord Donaldson MR in Re J (a minor) (wardship: medical treatment) [1990] 3 All ER 930. He stated `There is without doubt a very strong presumption in favour of a course of action which will prolong life, but, even excepting the `cabbage' case to which special considerations may well apply, it is not irrebuttable. As this court recognised in Re B, account has to be taken of the pain and suffering and quality of life which the child will experience if life is prolonged' (Re J at 938). This is further supported by Re R (Adult: Medical Treatment) [1996] 2 FLR 99. If these views are correct then it can be a harm to be alive and hence it is the wrongful life cases that are inconsistent.

(vi) Judicial disquiet

In Jones v Berkshire Area Health Authority (1986) (unreported), Ognall J. stated: "speaking purely personally, it remains a matter of surprise to me that the law acknowledges an entitlement in a mother to claim damages for the blessing of a healthy child. Certain it is that those who are afflicted with a handicapped child or who long desperately to have a child at all and are denied that good fortune would regard an award for this sort of contingency with a measure of astonishment. But there it is: that is the law". This statement was quoted with some sympathy by Lloyd LJ in Gold (at 484). However, judicial personal opinion, unless backed by a stronger legal argument than is the present case, should not affect the common law position of the litigants.

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e. The handicapped child

The case concerned a healthy child and their Lordships specifically declined to consider whether the decision would be different for a handicapped child. However, given Lord Steyn's argument about ensuring that the law should be coherent with that regarding wrongful life there must be some doubt about whether the parents of a handicapped child can recover for the cost of raising their child. This is especially so since their Lordships considered the benefits/detriments balance as an all-or-none process. Could any court find that a handicapped child could never offer any joy to the family?

Concurrent with McFarlane, an English court awarded £1.3 million to the parents of a severely disabled child born after a failed sterilisation. Francis states: "It is at least arguable that there is no difference in principle between the two cases. However the moral case in favour of providing the parent of an unwanted but severely handicapped child with the fund to cope with the disability is obviously stronger than that in favour of the parents in the current case" (Francis 2000, p 34). Even if that is true, it would hardly lead to a consistent and coherent principle of law governing such cases. What of the child with minimal disability? Given their Lordships' all-or-nothing rule it would be unfair to allow recovery for child maintenance. But, if recovery is not allowed for minor disability then how serious must a disability be before recovery is allowed? Would it be an objective test of disability or a subjective test of how the disability affected the joy that the child brings the parents? The only consistent and coherent answer is to deny recovery in all cases - healthy and handicapped. That, however, seems intuitively unfair.

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5. Conclusion

In an article relied upon by their Lordships, Stewart concludes: "an appropriate solution lies either in... the benefits rule, or more likely, in the limited damages rule" (Stewart 1995, p 302). Their Lordships unfortunately chose the limited damages rule with the majority basing their decision on the principle of distributive justice. While the Lords were correct in recognising that tort law involves a "mosaic" of corrective and distributive justice, they were arguably incorrect in the way they balanced the two sides of the argument. They failed to consider which party was best able to meet the loss or insure themselves against it. They also failed to recognise the many non-pecuniary detriments to be balanced against the non-pecuniary benefits gained in having a child. The arguments they used were either flawed or insufficient to justify the limited damages rule. Similarly, although they were correct to consider the moral aspects of the claim (Cane 1997, p 24) their skewed and singular moral view failed to do justice to what is a complex question. Furthermore, although each of their Lordships tolled the bell that their decision was not policy- based, their claims ring hollow. Given that policy was at the root of the decision to first allow damages for childrearing then it might have been better to consider openly the policy factors. Although perhaps not "odious", their Lordships have clearly failed to justify their decision.

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Bibliography

Cameron-Perry, JE (1999) `Return of the burden of the "blessing"' 149 New Law Journal 1887.

Cane, P (1997) The Anatomy of Tort Law (Oxford: Hart Publishing).

Dickens, B (1990) `Wrongful birth and life, wrongful death before birth, and wrongful law' in McLean, S (ed) Legal Issues in Human Reproduction (Aldershot: Dartmouth) 80.

Donnelly, M (1997) `The Injury of Parenthood: The Tort of Wrongful Conception' 48 Northern Ireland Legal Quarterly 10.

Francis, R `Commentary' [2000] Lloyds Law Reports Medical 32.

Norrie, KM (1991) Family Planning Practice & the Law (Aldershot: Dartmouth).

Stewart, A (1995) `Damages for the Birth of a Child' 40 Journal of the Law Society of Scotland 298.

Symmons, CR (1987) `Policy Factors in Actions for Wrongful Birth' 50 Modern Law Review 269.

(1) Wrongful birth and wrongful conception are usually used interchangeably in this country, however, given the way the judiciary have divided up the possible types of damage it is worth making a distinction between the two. In the U.S wrongful conception refers to those cases which result from a negligent sterilisation or advice that leads to an unwanted pregnancy. Wrongful birth is used to describe those cases where a child is born subsequent to a negligent abortion (Stewart 1995 p 298).

(2) The commentator that Dickens quotes is Bickenbach, J.E (1980) `Damages for wrongful conception: Dooiron v Orr' 18 University of Western Ontario Law Review 493 at 498.