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Wrongful Conception versus Wrongful Birth – the financial importance of the distinction when a child is born disabled

08 January 2021
This article considers the recent judgment of Mrs Justice Lambert on the preliminary issue as to the proper interpretation of the Congenital Disabilities (Civil Liability) Act 1976 and whether the claimant's case disclosed a lawful cause of action.

Evie Toombes (by her mother and litigation friend) v Dr Philip Mitchell [2020] EWHC 3506 (QB)

The Case of Evie Toombes

Evie was born on 19 November 2001, disabled by spina bifida. Her mother had attended her GP on 27 February 2001 for a family planning consultation but was not advised of the benefits of taking folic acid pre conception and that this could reduce the risk of such a disability. Evie's mother consequently became pregnant whilst her folic acid level was sub-optimal.  Evie's mother could have brought a claim for wrongful conception but chose not to do so, one of the reasons being that damages, if recovered, for the additional costs associated with Evie's disabilities would have been limited to her life expectancy, not that of her daughter's. Evie's claim was therefore brought in her own right (as a protected party) arguing that but for the GP's negligence she would not have been conceived, as her mother would have delayed conception until her folic acid levels had reached the recommended therapeutic level.

The defendant argued, unsuccessfully, that such a claim was unlawful as it effectively amounted to a 'wrongful life' claim.  To understand why, we need to consider:

  • the type of 'wrong' committed 
  • significance of disability
  • the role of statute, specifically the interpretation of the Congenital Disabilities (Civil Liability) Act 1976. 

Case Type

There are several case types and outcomes:

  • The 'wrongful pregnancy/conception' case type- is where the negligent act eg. incorrect family planning advice occurs pre-date of conception, such that but for negligence the pregnancy would not have eventuated.
  • The 'wrongful birth' case type – is where the negligence post-dates conception eg. the presence of fetal abnormalities not reported at scanning, such that but for the negligence mother would have chosen to abort. 
  • Outcome is a healthy child - before 1999 cases for substandard sterilisation/vasectomy operations followed by the birth of a healthy child would result in a substantial claim by the parents, including the expense (often put above £100,000) of raising that child. The scope for such claims was however significantly limited by the House of Lords in the case of Macfarlane v Tayside Health Board [2000] 2 AC 59 as the financial burden was to be offset by the joy of a new life and consequently damages for rearing a healthy child were severely limited. 
  • Outcome is a disabled child - parents remain able to recover for the additional upbringing costs of a disabled child (see Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530).   

Prohibition of claims for Wrongful Life

Wrongful pregnancy/conception and birth claims are usually brought under the common law by the parents of the child, the duty of care being owed to them as patients. An action on behalf of a child (disabled or not) alleging that their birth should not have occurred would constitute a claim for wrongful life and is not permitted on public policy grounds as being contrary to the sanctity of human life.

Where does the Congenital Disabilities (Civil Liability) Act 1976 fit in?

This statute provides rights for a child, born with disabilities (who would not otherwise have a claim) to pursue a defendant in their own right where that defendant has been negligent prior to their birth. Section 1 is reproduced below with my emphases, for ease of reference:

1  Civil liability to child born disabled

1)     If a child is born disabled as the result of such an occurrence before its birth as is mentioned in subsection (2) below, and a person (other than the child's own mother) is under this section answerable to the child in respect of the occurrence, the child's disabilities are to be regarded as damage resulting from the wrongful act of that person and actionable accordingly at the suit of the child.

(2)     An occurrence to which this section applies is one which—

(a)     affected either parent of the child in his or her ability to have a normal, healthy child; or

(b)     affected the mother during her pregnancy, or affected her or the child in the course of its birth, so that the child is born with disabilities which would not otherwise have been present. [Explanatory note: but for the occurrence giving rise to a disabled birth, the child would have been born normal and healthy, (not that it would not have been born at all)].

The Legality of Evie's Claim 

The determination of Mrs Justice Lambert  in favour of the claimant was based upon her interpretation of the Congenital Disabilities Act and specifically s. 1(2)(a). She found that Evie's claim was one of wrongful conception, not wrongful life (or an 'abortion' claim) with the elements required by the statute fulfilled as-

  • There had been a wrongful act pre conception ie. failure to advise mother to take folic acid 
  • Followed by an occurrence ie. sexual intercourse between mother and father when mother was folic acid deficient
  • A disabled child being born, those disabilities being attributable to folic acid deficiency  – there being no statutory requirement for the claimant to prove that 'but for' the GP's failure Evie would still have been conceived and born (as is required in s. 1(2)(b)).

What does this mean for clinical negligence practitioners, indemnifiers and insurers?

Wrongful conception and wrongful birth claims have never been straight forward, involving intellectual gymnastics to interpret common law, statute and public policy. What this decision does for a limited category of claimant ie. those born disabled as a result of pre-conception negligence, is provide the scope to recover damages in their own right to compensate them for their lifelong disabilities rather than compensate a parent for the additional costs they incur in dealing with those disabilities during their lifetime. It is unlikely to bring about a flood of claims but, for those disabled claimants who are able to bring  a claim within s.1 (2)(a) of the Congenital Disabilities Act, and have a near normal life expectancy it will significantly move the dial in relation to the level of damages they can pursue.

Further Reading