Wrongful birth is the phrase which is used by the Courts to describe a claim which is a consequence of the birth of a child who would normally not had been born if negligence had not occurred.
This claim is brought by the parents, primarily it is brought by the mother as it is normally the mother who has been the recipient of the negligent treatment.
Normally cases of this nature occur in two circumstances:
- Failed sterilisation or vasectomy procedure
- Failure to warn the parents that the child would be born with a disability and if they had been warned the pregnancy would have been terminated.
Failed sterilisation or vasectomy procedure:
When a claim relates to a failed sterilisation procedure, the claim is for the wrongful birth which basically means that had the procedure been performed correctly then the child would not have been conceived. The compensation for a case like this relates to the physical and emotional pain experienced by an unwanted pregnancy and labour. Further, it can include the fact that further re-sterilisation will have to be performed.
Further, if the parents decide to undergo a termination of the pregnancy then they can be compensated in regards to this. With claims of this nature compensation also includes any financial losses as a result of the unwanted pregnancy.
However, since a major decision in the Courts several years ago compensation cannot include the cost of bringing up the child except when the child is disabled.
Failure to warn about disabilities:
There are a number of different birth defects which an unborn baby can develop – these include:
- Down’s syndrome
- Spina bifida
- Holes in the heart
During the course of a pregnancy, it is necessary for both the mother and baby to be monitored through antenatal appointments and scans. During such appointments, detailed histories should be taken to screen for babies which may be at a higher risk of developing congenital defects.
Negligence can occur when either such tests are not performed or offered or alternatively, negligence can occur when such tests are performed and there is a failure to correctly diagnose that congenital defect.
Failure to detect a congenital defect can occur as a result of human error, poor training or faulty machinery. In situations like this, damages often provide for the costs associated with the welfare and healthcare of the disabled child.
If you are concerned that negligence has occurred and there has been a wrongful birth, please contact us today for a free, no obligation chat.