The Harm Paradox

Tort Law and the Unwanted Child in an Era of Choice

Nicolette Priaulx

• Publisher: Routledge-Cavendish
• Year: 2007
• eBook ISBN: 9781135392369
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Offering the first comprehensive theoretical engagement with actions for wrongful conception and birth, The Harm Paradox provides readers with an insightful critique into the concepts of choice, responsibility and personhood.

Raising fundamental questions relating to birth, abortion, family planning and disability, Priaulx challenges the law's response that enforced parenthood is a harmless outcome and examines the concept of autonomy, gender and women's reproductive freedom.

It explores a wealth of questions, including:

• Can a healthy child resulting from negligence in family planning procedures constitute 'harm' sounding in damages, when so many see its birth as a blessing?
• Can a pregnancy constitute an 'injury' when many women choose that very event?
• Are parents really harmed, when they choose to keep their much loved but 'unwanted child'?
• Why don't women seek an abortion if the consequences of pregnancy are seen as harmful?

An exciting and original contribution to the fields of medical law and ethics, tort law and feminist jurisprudence, this is an excellent resource for both students and practitioners.

Chapter 1
The beginning of the decline

She pondered. ‘Androids can’t bear children’, she said, then. ‘Is that a loss?’

He finished undressing her. Exposed her pale, cold loins.

‘Is it a loss?’ Rachel repeated. ‘I don’t really know; I have no way to tell. How does it feel to have a child? How does it feel to be born, for that matter? We’re not born; we don’t grow up; instead of dying from illness or old age we wear out like ants. Ants again – that’s what we are. Not you – I mean me. Chitinous reflex-machines who aren’t really alive.’

(Dick, 1968:165)

The stories of parents bringing wrongful conception actions against health authorities render familiar allegations – clinical mishaps ranging from negligently performed vasectomy or sterilisation, to the provision of incorrect test results following postoperative testing. Claiming that in the absence of such negligent treatment the child would not have been born, parents have typically sought to claim damages for the pain and suffering of the physical events of pregnancy and childbirth and for the costs of child-rearing. While English law has traditionally permitted both claims, the question of whether parents should be entitled to the costs of child-rearing has proved controversial. The initial reaction to such a claim was outright rejection. In Udale v Bloomsbury Area Health Authority [1983] 2 All ER 522, Jupp J denied damages under this head on the grounds of public policy, observing inter alia, that the birth of a child ‘is a blessing and an occasion for rejoicing’ (p 531). Although not repudiating the ‘child as a blessing’, Udale was soon overruled by Thake v Maurice [1985] 2 WLR 215. In allowing damages for child-rearing, Peter Pain J preferred to address the issue in economic terms: ‘…every baby has a belly to be filled and a body to be clothed’ (p 230). And this more pragmatic line of reasoning was followed by the Court of Appeal in Emeh v Kensington, Chelsea and Westminster Area Health Authority [1985] QB 1012. Despite occasional expressions of ‘surprise’ that English law should permit such recovery (see for example, Jones v Berkshire Area Health Authority (unreported, 2 July 1986), Gold v Haringey Health Authority [1988] QB 481, and Allen v Bloomsbury [1993] 1 All ER 651), it seemed that Emeh had settled the matter. As Mary Donnelly considered at the time, ‘in the unlikely event of the House of Lords overruling any of these decisions, the policy debate in England appears to be concluded’ (1997:16); but the gates of policy were about to reopen in the case of McFarlane v Tayside Health Board [2000] 2 AC 59.

In 1999 the House of Lords were faced with two claimants, Mr and Mrs McFarlane, who had been assured by doctors that the husband was no longer fertile following his vasectomy operation. Having dispensed with contraceptive methods, Mrs McFarlane became pregnant and gave birth to their fifth child, Catherine. Mrs McFarlane claimed damages for the pain and inconvenience of pregnancy and birth, and both pursuers claimed for the costs of rearing their healthy child. Despite the Health Board’s contention that the processes of conception, pregnancy and childbirth were natural events, thereby pure economic loss,¹ the majority of the House found relatively little difficulty in construing such events as actionable physical harm to the mother. Therefore, while reaching little agreement as to the extent of damages, their Lordships found that Mrs McFarlane should be entitled to recover for the pain and inconvenience of the pregnancy and for those expenses arising as a result of the pregnancy. However, in relation to damages for the cost of raising a healthy child, all their Lordships were in agreement – this part of the claim should be denied – although they employed a variety of techniques in reaching this conclusion. Lords Slynn and Hope typified this part of the claim as pure economic loss. In severing the child maintenance claim from the duty of the doctor to prevent pregnancy, no justification was provided as to why a doctor should be liable for the economic loss consequential on the personal injury of pregnancy and childbirth, yet not the maintenance of the child. One would seem to flow inexorably from the other – well recognised by Lord Millett, who rejected that the question should turn on whether economic loss was pure or consequential.

The distinction being artificial if not suspect in the circumstances of the present case, and is to my mind made irrelevant by the fact that … conception and birth are the very things that the defendant’s … were called upon to prevent.

(p 109)

To hold a doctor liable for such economic losses, Lord Slynn considered, would not be ‘fair, just, and reasonable’,² reasoning that while the doctor is under a duty to prevent pregnancy, he does not assume responsibility for the costs of child maintenance. Lords Hope and Clyde, noting that this was a minor procedure, suggested that the loss suffered was disproportionate to the wrongdoing. Lord Millett rejected this line of reasoning, noting that it is commonplace that ‘the harm caused by a botched operation may be out of all proportion to the seriousness of the operation’ (p 109). Lord Clyde, while categorising the loss as purely economic, rejected recovery on the basis that an award enabling parents to maintain their ‘welcome’ child free of cost would not accord with the idea of restitution. And, although their Lordships had already rejected a ‘set-off’ argument, the benefits of having a child being incalculable in monetary terms, Lord Hope reiterated that it would not be ‘fair, just or reasonable’ to leave such benefits out of account, otherwise the parents would be unjustly enriched. Is this not obviously engaging in a set-off exercise?

Similarly, in declaring the set-off exercise as capable of producing ‘morally repugnant’ results, Lord Millett also engaged in the same process, finding that society must take the blessing of a healthy baby to outweigh the disadvantages of parenthood. A rather odd conclusion one might think, having earlier described the benefits as ‘incalculable and incommensurable’ (p 111). On this reasoning, parents could not make it a matter for compensation because ‘it is an event they did not want to happen’ – they cannot ‘make a detriment out of a benefit’ (p 113). Such reasoning, Lord Millett found, led to the rejection of both claims. Pregnancy and delivery were the inescapable preconditions of the child’s birth, and raising the child was an inevitable consequence – ‘the price of parenthood’ – unaltered by the fact that ‘it is paid by the mother alone’ (p 114). Instead he suggested a conventional award of £5,000 to reflect their loss of freedom to limit their family size.

While both Lords Millett and Steyn sought to reject the ‘formalistic techniques’ of duty, foreseeability, causation and reasonable restitution employed by the remainder of the House, Lord Steyn suggested that this process of categorisation acted to ‘mask the real reasons for the decisions’ (p 82). Noting that on the normal principles of corrective justice, such a claim would succeed, Lord Steyn preferred to regard the case ‘from the vantage point of distributive justice’ (p 82). Echoing sentiments expressed in each judgment in McFarlane, he concluded that it would be contrary to the moral ethos of society to compensate parents for the birth of a healthy child:

[I]t may become relevant to ask commuters on the Underground the following 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 for the years of his or her minority, i.e. until about 18 years?’ My Lords, I am firmly of the view that an overwhelming number of ordinary men and women would answer the question with an emphatic “No” … Instinctively, the traveller on the Underground would consider that the law of tort has 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.

(p 82)

Lord Steyn readily admitted that the principles of distributive justice were grounded on moral theory. Alert to the fact that some may object to the House acting as a court of morals, rather than of law, he noted that the ‘judges’ sense of the moral answer to a question … has been one of the great shaping forces of the common law’ (p 82). Denying that such conclusions were the ‘subjective view of the judge’, he noted that these views were ascertainable by what the judge reasonably believes that the ordinary citizen would regard as right. The differing approach of the judges has not provided a straightforward judgment, or one that is defensible on the ordinary rules of tort. But irrespective of the various legal techniques employed, the issue central to McFarlane is policy. As Baroness Hale asserts:

[A]t the heart of their reasoning was the feeling that to compensate for the financial costs of bringing up a healthy child is a step too far. All were concerned that a healthy child is generally regarded as a good thing rather than a bad thing.

(Hale, 2001:755)

It is undeniable that some might regard a healthy child as a joy, but what does this perspective miss? If one decides to undergo invasive medical procedures to remove the prospect of parenting responsibilities, can the failure of that procedure be properly described as a ‘joy’ or ‘good thing’? Herein lies the notion that the parents have, as a matter of law, suffered no harm from a child’s birth, even when that ‘joy’ is thrust upon them.

Characterising harm

The concept of ‘harm’, though seemingly self-evident, is thoroughly ambiguous. In defining our understanding of ‘harm’, we might initially allude to broken bones or other types of obvious injuries; injury in this sense clearly constitutes ‘harm’. Nevertheless, the further we stray from the corporeal paradigm, the more difficult it becomes to refer to ‘injury’ (Feinburg, 1984); for example, a stolen wallet – we would hardly refer to the owner as being ‘injured’, but we could conceptualise this through a customary understanding of harm, notably the ‘setting back, or defeating of an interest’ (Feinburg, 1984:33). On this view, ‘harm’ is a broader notion than ‘injury’. Nevertheless, individual notions of harm can both overlap and be quite distinct from legal conceptions of harm. As Joanne Conaghan and Wade Mansell (1999) point out, ‘While some kinds of harms are easily assimilated within the traditional corpus of law, others do not lend themselves so easily to tortious characterisation’ (1999:16). Considering the doctrinal limitations of tort and the construction of harm it is worth considering what interests, and, more particularly, whose interests, tort law serves. In this respect, Conaghan argues that tort law, ‘while quick to defend and protect interests traditionally valued by men, is slow to respond to the concerns which typically involve women, for example, sexual harassment or sexual abuse’ (1996:48). It is only since the late 1970s that sexual harassment has transformed from behaviour widely regarded as a ‘harmless’ part of normal human engagement to behaviour constituting sex discrimination, deserving of a legal response (Conaghan, 2002).

In examining the array of harms that women predominantly suffer, some have deployed the concept of ‘gendered harm’ in rendering visible the harms that women suffer, as women (Graycar and Morgan, 2002). Therefore, in the context of wrongful conception, it should be relevant that the experience of pregnancy and childbirth is not universal, and that, as actual mother and carer of an unintended child, women will be most affected by decision making in this area of tort law. Seen in this light, the principles of distributive justice, directed towards the ‘just distribution of burdens and losses among members of a society’ (p 165 per Lord Steyn), certainly fall under suspicion; the ‘losers’ will always be women. Therefore, one must question why ‘harm’ in wrongful conception does not translate into cognisable legal ‘harm’, where significant policy considerations militate against such a finding.

In McFarlane, ‘harm’ is legally constructed in two principal ways. First, a healthy child is a blessing and its existence cannot be injurious. Second, the ‘harm’ claimed in wrongful conception is wholly economic and in the absence of a duty of care to protect the claimants’ ecomonic interests, damages are not available. Yet, Lord Millett recognised that the contention that the birth of a healthy child ‘is not a harm’, was not ‘an accurate formulation of the issue’, but that it would only constitute a harm if its parents chose to regard it as such (p 112). It can be a harm, but not at law? Alternatively, claimants are wrong to assert a child constitutes harm because society regards a child as a blessing? Akin to Lord Millett’s view that ‘society must regard the balance as beneficial’ (p 114), Lord Steyn was equally certain that the commuter on the Underground would consider those in society unable to have children and find it morally unacceptable to compensate parents for rearing a non-disabled child in these circumstances. Of course, the commuter is nothing more than a fictitious character of the legal imagination used as a doctrinal obstacle to recovery – but to pernicious effect. He carries with him the ‘sting of societal condemnation’ (Meyer, 2000:565) and has only served to limit a fundamental right and exclusion from protection. This commuter, J. K. Mason suggests, is a ‘tough person, inured to the slings and arrows of outrageous conditions’ (2000:205). He speculates that the traveller on the Strathay Scottish Omnibuses would provide a different view: ‘these people find themselves in a position which they sought to avoid’ (Mason 2000:205).

The assumption that the parents have suffered no ‘harm’ through the blessing of a child is erroneous and conveniently overlooks the fact that here a ‘blessing’ has been forced upon them. The experience of parenthood in wrongful conception is clearly different from the situation where parenthood has been planned. The fundamental distinction is that in the former, medical negligence led to the birth of a child. Even if society does hold the assumption that a healthy child is a good thing, it seems unlikely that many commuters would be quick to assume that the...

Table of contents

• Biomedical Law and Ethics Library
• Contents
• Acknowledgements
• Introduction
• Table of cases
• Table of legislation
• Chapter 1 The beginning of the decline
• Chapter 2 Injured bodies
• Chapter 3 Health, disability and harm
• Chapter 4 The harm paradox
• Chapter 5 Constructions of the reasonable woman
• Chapter 6 Reproductive choice, reproductive reality
• Chapter 7 The moral domain of autonomy
• Bibliography
• Index