Wrongful birth is the legal terminology used to describe a claim arising from the birth of a child who would not have been born without negligent treatment.
It is a difficult concept to comprehend, and the terminology might not sound very nice, but these types of claim are quite common.
In this article, we’ll explain a bit more about wrongful birth claims.
Proving a wrongful birth claim
To succeed with a wrongful birth claim, we must prove two things:
- That there has been negligent treatment falling below the standard to be expected of a reasonably competent medical practitioner in that field of medicine; and
- That the negligent treatment has led to a child being born but that, had the negligence not occurred, the child would not have been born.
Situations where such a claim might arise include unplanned pregnancies following a failed sterilisation or vasectomy, or a failure of the hospital to detect a disability or health condition before birth.
Failed sterilisation or failed vasectomy
If you underwent a sterilisation or a vasectomy that failed because of negligent or substandard treatment, this could result in an unplanned and unwanted pregnancy.
In this situation, a wrongful birth claim could be pursued against the hospital for the birth of a child that would otherwise not have been conceived had the treatment been of an acceptable standard.
The claim would be made up of any loss of earnings and other financial losses that resulted from the unwanted pregnancy. In addition, you might be able to claim for the emotional distress and physical pain of having to go through an unwanted pregnancy.
However, the claim will not include any compensation for the cost of bringing up a child born as a result of a failed sterilisation or failed vasectomy.
The law in this area is very clear. Only in circumstances where the unwanted pregnancy results in the birth of a disabled child can the cost up bringing up the child be claimed. If the unwanted pregnancy results in the birth of a healthy child, then the costs of raising that child cannot be claimed.
Failure to warn about specific disabilities
Another situation in which a wrongful birth claim may arise is where negligent treatment has resulted in a failure to diagnose a specific disability of the baby during pregnancy.
When pregnant, you will undergo various tests and scans to check the health of the unborn baby and there are some disabilities which can and should be picked-up during such scans and tests.
Where disabilities are detected, it is up to the parents to decide whether to continue with the pregnancy fully informed of the condition and its consequences should the pregnancy continue and the baby be born.
Of course, if there is a failure in the treatment provided and a detectable disability remains undiagnosed until birth, this results in the parents being prevented the right to be fully informed and choose whether to continue the pregnancy or not.
Such claims are complex and often very emotionally difficult because we have to prove that, had the disability been diagnosed as it should have been during pregnancy, the client would have chosen to terminate the pregnancy.
This is not easy for anyone, but the reality is with some disabilities, the consequences for the child are permanent and life-limiting, and sometimes the best interests of the unborn child need to outweigh the desire to have a baby.
Where this has been taken away as a result of a negligent failure to detect the disability before birth, a wrongful birth claim can arise.
Having the right legal team to represent you is vital
These claims are very complex and it is vital that you have an experienced and specialist medical negligence team supporting you to pursue a claim.
The first step is to discuss it with the experts and explore whether there might be a claim for wrongful birth.
How Nelsons can help
At Nelsons, our specialist team are happy to discuss with you any concerns you have about treatment provided to you or your partner during pregnancy.
If you have any questions in relation to the subjects discussed in this article, then please get in touch with Danielle or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.