I. Introduction
Wrongful life actions, which I shall define as claims brought by children where a defendant’s wrong has caused their very existence (usually in a disabled condition), are not permitted in most common law jurisdictions.Footnote 1 At first sight, English law appears to accord with this pattern. The leading case is McKay v Essex A.H.A.Footnote 2 Mary McKay’s mother was infected with rubella during pregnancy, which was known to cause birth defects. After the defendants’ carelessness led to blood tests and samples being mislaid, Mrs. McKay was inaccurately told that she was not infected with the disease. She therefore never considered an abortion and gave birth to the claimant, whose disabilities included partial blindness and deafness.
This type of case is distinct from prenatal injury claims (or “liability for post-natal injuries resulting from prenatal events”Footnote 3 ). Examples of such actions might include a doctor negligently prescribing a pregnant woman a teratogenic drug that causes birth defects or an abusive partner punching the expectant mother with the result that she gives birth prematurely. Children born with disabilities in such circumstances may be able to show that but for the defendant’s wrongful prenatal conduct, they either would have avoided the disability altogether, or at least that any impairment would have been less severe.Footnote 4 Allowed under the Congenital Disabilities (Civil Liability) Act 1976 and, residually, at common law,Footnote 5 this type of claim has been described as “legally uncontroversial”.Footnote 6
By contrast, for Mary McKay the disability, or risk of disability, was already present before any wrongdoing occurred. But for the defendants’ negligence, she would not have been born without a disability: her mother would have had an abortion. Unlike the typical claim for prenatal injuries, the defendants’ negligence has not deprived her of existence without a disability. She would either be born with one or not exist at all.
The Court of Appeal’s reasons for rejecting the claim can be briefly summarised: there was no duty to terminate the foetus’s life; the claim violated the sanctity of life; there were difficulties with identifying the actionable damage and calculating damages; and the claim devalued the lives of disabled people.Footnote 7 I will return to this reasoning later. For present purposes, the important point is that in this strike-out application all of the judges were “unanimously of the opinion that the infant plaintiff’s claim for what has been called ‘wrongful life’ discloses no reasonable cause of action”.Footnote 8
Mary McKay was born in 1975 and so the case was decided at common law but the Court of Appeal held, obiter, that had she been born after the passing of the Congenital Disabilities (Civil Liability) Act 1976 it too would have ruled out a claim. More recently, the Court of First Instance in Hong Kong SAR arrived at a similar conclusion. The Law Amendment and Reform (Consolidation) Ordinance (Cap. 23) (“LARCO”) substantially replicates the 1976 statute. In Lam Wing Hei v Hospital Authority Footnote 9 – a claim brought by a child who alleged that the defendant’s negligent failure to inform her mother of her chromosomal abnormality deprived her mother of the opportunity to terminate the pregnancy, with the result that the claimant was born with CHARGE syndrome – the Court of First Instance held that LARCO prevents wrongful life claims. Notably, since Lam Wing Hei was a claim brought after the passing of the Ordinance, it is part of the ratio of the case.
Read together, McKay and the 1976 Act appear to foreclose wrongful life claims in England. After detailing this apparent bar in Section II, I then contend in Section III that this first impression is, in fact, highly misleading. First, the 1976 Act only applies to claims in respect of disabilities and so wrongful life claims built around novel forms of damage may fall outside the scope of the legislation.
Second, and more significantly, the 1976 Act creates wrongful life actions, which will be detailed in Section IV and V. Specifically, these are: (1) infertility treatment actions under section 1A as inserted by the Human Fertilisation and Embryology Act 1990; and (2) actions based on the interpretation of section 1(2)(a) of the 1976 Act in Toombes v Mitchell.Footnote 10 I will refer to these inroads into the prima facie exclusion of liability for wrongful life as “conception claims” to distinguish them from the type of case that follows a similar fact pattern to McKay, which I shall call “pregnancy claims”. I then argue in Section VI that there is no convincing reason for this dichotomy and so English law’s laws treatment of this enclave is arbitrary.
This arbitrariness provides us with a reason for reforming the law. How, then, should this be done? A key hurdle faced by those wishing to impose liability for wrongful life is reconciling these actions with the requirement in negligence for claimants to show that they have suffered actionable damage. Attempts to do this have been advanced in the literature. The strongest involve: (1) a counterfactual account whereby life with disabilities constitutes damage when it is on-balance bad;Footnote 11 and (2) a non-counterfactual view, whereby life is damage when one is placed in a position where one suffers from disabilities.Footnote 12 In Section VI, I argue that while both of these proposals, when placed next to the current legislation, constitute much more principled ways of permitting wrongful life claims, there may still be compelling reasons for excluding liability in this context. I then conclude in Section VII that the governing legislation requires repeal or, at the very least, radical reform.
Before beginning, some caveats. First, my primary object is English law but, given that they share a similar statutory framework, most of my conclusions will apply to Hong Kong.Footnote 13 I also make use of other common law decisions in my analysis, particularly those of the High Court of Australia where the most detailed judicial examination of wrongful life has taken place.
Second, although the factual matrix of wrongful life actions can also generate wrongful birth claims by parents,Footnote 14 and these may provide an (imperfect) avenue for holding negligent defendants accountable,Footnote 15 my focus is on claims by children. While some of the criticisms of wrongful life discussed below have also been directed at wrongful birth claims (such as the idea that they lead to litigation that is demeaning to disabled people), the damage problem is less acute. In wrongful birth cases, the pregnant woman planned to have the expense of raising a healthy child but now has the extra cost associated with raising a child with disabilities. Unlike in wrongful life claims, these cases do not require an assessment of whether the child is harmed by existence. It may be, though, that any reform efforts directed at wrongful life claims should be broadened to encompass wrongful birth and other reproductive negligence actions.
Third, there is a vast body of literature, derived from Derek Parfit’s “Non-Identity Problem”, on the morality of wrongful life actions.Footnote 16 Likewise, “critical legal studies” or “social justice” perspectives have contributed to these debates.Footnote 17 Although I refer to some of this scholarship in places, I believe a doctrinal approach to these issues is timely in light of a number of recent developments.Footnote 18 Although the first inroad involving section 1A has been subject to scrutiny, notably by Rosamund Scott in this journal,Footnote 19 there has been very little scholarly examination of Toombes or Lam Wing Hei, despite them clarifying important aspects of this area of law.Footnote 20
Finally, the label “wrongful life” is commonly charged with having “bizarre, even macabre, overtones”.Footnote 21 Yet the term is widespread and the suggested alternatives usually inappropriately obscure the true nature of the claim. For example, Harvey Teff proposed replacing it with familiar legal categories, such as “negligently inflicted injury” or “absence of informed consent”.Footnote 22 This can be regarded as the equivalent of attempting to side-step the intractable causation questions raised by the exposure to asbestos in Fairchild v Glenhaven Funeral Services Ltd. by declaring it to be a simple case of employers’ liability.Footnote 23 In the absence of a better description, I will continue to refer to these claims as ones for wrongful life.
II. The Supposed Bar on Wrongful Life Claims under the 1976 Act
As was noted in the introduction, the Court of Appeal in McKay maintained that the Congenital Disabilities (Civil Liability) Act 1976 ruled out claims for wrongful life.Footnote 24 It is worth giving a precis of the legislation before examining whether this view is accurate.
The Act applies to all births after its passing (i.e. 22 July 1976)Footnote 25 and arose as a result of the thalidomide scandal where a sedative marketed as a safe cure for morning sickness in reality had teratogenic effects and was responsible for causing widespread birth defects.Footnote 26 As a result of the litigation challenges faced by children harmed by the drug, the Law Commission recommended putting civil liability for ante-natal injuries on a statutory footing.Footnote 27 Section 1(1) states that if a child is born disabled as a result of an occurrence before its birth and a person (other than the child’s mother) is answerable to the child in respect of the occurrence then “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”. There are, therefore, three key requirements to successfully claim: a child “born disabled”; an “occurrence”; and “answerability”.
“Born” means “born alive (the moment of a child’s birth being when it first has a life separate from its mother)”Footnote 28 and “disability” refers to “any deformity, disease or abnormality, including predisposition (whether or not susceptible of immediate prognosis) to physical or mental defect in the future”.Footnote 29 An “occurrence”, a key notion to which I will return, is defined in section 1(2) as 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.
A defendant will be “answerable” to the child if “he was liable in tort to the parent or would, if sued in due time, have been so”, though “it is no answer that there could not have been such liability because the parent suffered no actionable injury, if there was a breach of legal duty which, accompanied by injury, would have given rise to the liability”.Footnote 30
In McKay Griffiths L.J. maintained that section 1 of the Act “achieves its objective”Footnote 31 in excluding wrongful life claims. Section 4(5) replaces the common law “whereby a person could be liable to a child in respect of disabilities with which it might be born” and section 1(2)(b) requires that an occurrence that affects the mother during pregnancy, or her or the child during the course of its birth, results in a situation in which a “child is born with disabilities which would not otherwise have been present”. If a defendant is to be liable for an occurrence during pregnancy, the child must have been capable of being born without the disability. In other words, the disability must have been caused by the occurrence. Removing the negligent occurrence would not have enabled Mary McKay to have a life without disability as it would have eradicated her very existence. Accordingly, her claim was not permitted under the Act.
III. The Scope and Gist of Wrongful Life Claims under the 1976 Act: Disabilities and Novel Forms of Damage
Despite the views expressed in McKay, a number of inventive arguments have contested the idea that the 1976 Act bars wrongful life claims.Footnote 32 Michael Jones has articulated the most promising of these. He maintains that the legislation does not remove the possibility of a wrongful life action as such claims are not in respect of disabilities “but rather a claim not to have been born at all, which theoretically could be brought by a healthy child”.Footnote 33
At least in some circumstances, this seems persuasive. Certain forms of damage in wrongful life claims, if accepted as actionable, would not be classed as “disabilities” and so fall outside of the Act. This can be illustrated by the Northern Irish case of A and B v A Health and Social Services Trust.Footnote 34 The claimants were twins born with a darker skin colour than their white parents as a result of the wrong sperm being used in the parents’ IVF treatment. Their claim against the defendant failed on the ground that they had not suffered any damage: harm taking the form of one’s skin colour could not form the gist of an action in negligence.Footnote 35 Nonetheless, Sally Sheldon identifies this as a claim for wrongful life because the children would not exist if the correct sperm had been used.Footnote 36 As the alleged damage would not be encompassed by the definition of disability in section 4(1), this type of case would fall outside of the Act and would be governed by the common law. Although the putative damage was not recognised, it illustrates the point that non-disability wrongful life claims fall outside of the Act.
Similarly, in the Illinois case of Zepeda v Zepeda,Footnote 37 a claim brought by a child for harm associated with being illegitimate was rejected as a wrongful life claim. Again, this type of damage was not actionable. But, if a similar case were brought in England, it would fall outside the Act as the alleged damage is not a disability. The controversial presentation of the damage in A and B and Zepeda no doubt doomed them to failure, but other novel forms of damage might more successfully ground a claim.
In ACB v Thomson Medical Pte Ltd. – a case not dissimilar to A and B involving the wrong sperm being used in fertility treatment, but brought by the mother – the Singapore Court of Appeal recognised “loss of genetic affinity” as a new form of damage.Footnote 38 Assuming that a child in England were to frame the damage in this way, the Act would not be engaged because a lack of genetic affinity with one’s parent(s) is not a disability. This is not to say that such claims would succeed: the English courts may not follow Singapore’s lead in recognising this damage.Footnote 39
Additionally, a claim will fall outside the purview of the legislation if the claimant is not born with a predisposition towards a disability. This point is exemplified by a case that arose from the “spy cops” scandal, where undercover police officers infiltrated (mostly left-wing) political groups and began relationships with members.Footnote 40 In TBS v Metropolitan Police Commissioner,Footnote 41 the claimant’s mother was a political activist and his father pretended to be one but was really an undercover police officer. The father later abandoned the claimant and lied about why. When the claimant discovered his father’s identity and the actual reasons for the abandonment, he developed an adjustment disorder and a depressed mood. He brought claims in misfeasance in a public office and negligence against the defendant commissioner. If the defendant had not been a “spy cop” and seduced the claimant’s mother, then she would not have become pregnant with the claimant and he would not exist at all. Nicol J. refused to strike out the claim and I will examine the reasoning later in this article, including the judge’s denial that the claim was for wrongful life. For the point at hand, it is relevant that both parties agreed that the 1976 Act did not apply to these issues. No reason was given for this concession but it was probably correct. Although an adjustment disorder could be classed as a disability, the claimant was not born with it, nor is there any indication that he was born with a predisposition to a mental disability.
The above discussion indicates that certain wrongful life claims will fall outside the scope of the 1976 Act. However, it may be harder to maintain that all wrongful life claims can avoid the reach of the legislation by a clever reframing of the gist of the action. This is because Jones’s argument that the damage is properly seen as “life” was specifically considered and rejected by the Court of First Instance of Hong Kong SAR in Lam Wing Hei. Justice Bharwaney held:
The combined effect of clause 1 and in particular, clause 1(2)(b) thereof, and of clause 4(5) of the Bill was to bar any such cause of action for damages for wrongful life and wrongful suffering for children born after the passing of the Act. The Court of Appeal in McKay v Essex Area Health Authority did not misread the legislation.Footnote 42
It may be that a middle ground can be found. A claim for wrongful life where the claimant seeks damages reflecting any disabilities might properly be regarded as one “in respect of disabilities”, even if the claimant tries to side-step this and frame the claim as one for “life”. The Act would govern such claims while those for genuinely novel forms of damage, unrelated to disability, could be regarded as falling outside its reach.
Although this is the best reading of the legislation, the Act potentially adopts a more restrictive attitude to disabilities, at least under section 1(2)(b), than it does more nebulous, novel forms of damage, which fall outside its scope. This is an odd feature of the legislation, given that physical well-being is usually regarded as one of the most important interests that tort law protects.Footnote 43
This may be considered one example of the English law’s haphazard treatment of wrongful life actions. But it is mainly of academic interest, given that the common law, after McKay, does not adopt a permissive approach to wrongful life actions (thus precluding most of the non-disability claims that fall outside of the Act).Footnote 44 Of far greater practical importance are the wrongful life actions that the Act explicitly creates. It is to these that I shall now turn.
IV. Infertility Treatment Claims
One important inroad into the apparent legislative bar on wrongful life claims arises by virtue of section 1A of the 1976 Act, which was added by section 44 of the Human Fertilisation and Embryology Act 1990. Section 1A extends section 1 of the 1976 to cover infertility treatments and states:
In any case where –
(a) a child carried by a woman as the result of the placing in her of an embryo or of sperm and eggs or her artificial insemination is born disabled,
(b) the disability results from an act or omission in the course of the selection, or the keeping or use outside the body, of the embryo carried by her or of the gametes used to bring about the creation of the embryo, and
(c) a person is under this section answerable to the child in respect of the act or omission,
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.
Consider the embryologist faced with transferring Embryo A, which will result in a child with a disability, or Embryo B, which will result in a child born free from disability. If the embryologist negligently selects Embryo A instead of Embryo B then, according to section 1A, the disabled child will be able to claim for the disabilities. Yet Child A would not have had an existence without the disabilities. If Embryo B were selected instead, then a different, non-disabled person would be born. Section 1A therefore creates a wrongful life claim.
Convincing justifications for permitting this type of wrongful life claim have proven elusive.Footnote 45 If the mere fact that it involves assisted reproductive treatment (“ART”) supported differential treatment, then its creation “could be perceived either as stigmatising, or privileging, the now relatively common use of ART”.Footnote 46 In her illuminating review of the parliamentary debates that led to the introduction of section 1A, Rosamund Scott recognised that the creation of this wrongful life action was “simply portrayed as being analogous to a claim in respect of prenatal injury to the fetus”.Footnote 47 However, such an analogy is inapt given that, where there is negligent selection of an embryo, “[t]hat particular child had no other way of being born than as a disabled one”.Footnote 48 This indicates that the legislature not only created a wrongful life action but did so inadvertently. I will return to whether the distinction between this type of “conception” claim and those “pregnancy” claims that follow a similar fact pattern to McKay is justified after considering another type of wrongful life claim created by the statute.
V. Occurrences under Section 1(2)(A)
A. Toombes v Mitchell
The case of Toombes v Mitchell Footnote 49 indicates that the availability of wrongful life claims extends beyond section 1A: they are also permitted under section 1(2)(a) of the legislation. Evie Toombes was born with a congenital developmental defect from spinal cord tethering. She brought a claim under section 1(2)(a) alleging that the defendant doctor failed to advise her mother of the benefits of taking folic acid before conception. If properly advised, Evie’s mother would have delayed conceiving for several weeks and taken folic acid during that time.
In a trial on the preliminary issues, Mrs. Justice Lambert held that an “occurrence” need not necessarily result in a change in the physiological state of the parent.Footnote 50 The “ordinary linguistic meaning” of “occurrence” is “that something happened”.Footnote 51 Relying on negligent advice and having an act of sexual intercourse when the mother was in a folic acid-deficient state was capable of being an occurrence.Footnote 52 Furthermore, section 1(2)(a) contained no prohibition on a claim brought by a child who, but for the wrongful act, would not have been born at all. Recall that it merely requires an occurrence to have “affected either parent of the child in his or her ability to have a normal, healthy child”. By contrast, section 1(2)(b) requires an occurrence to have “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” (emphasis added). As the judge noted, “this rider was not added to subsection 1(2)(a) which deals with pre-conception occurrences, only to 1(2)(b)”.Footnote 53 Section 1(2)(a) therefore “contains no express prohibition on claims brought by children who, but for the wrongful act, would never have been conceived”.Footnote 54 Given this, all the elements of the cause of action under the Act were present and so the claim could proceed. It was later successful at trial.Footnote 55
If the defendant had not been negligent, then Evie Toombes’s mother would have waited several weeks to conceive. The delay in intercourse would entail a different sperm fertilising a different egg. As such, the claimant would not have had a non-disabled existence if her mother had waited to take sufficient folic acid before conception. Instead, a different child would be born. This is therefore a case of wrongful life: one that occurs before or at conception. Section 1(2)(a)’s definition of “occurrence” means that the Act “appears to recognise a form of legal interest in not being conceived”Footnote 56 – a fact recognised by an early commentator on the Act.Footnote 57
B. The Reach of Section 1(2)(a)
It is worth noting that not all claims that fall under section 1(2)(a) are for wrongful life. For example, imagine that a defendant negligently ran over a woman and injured her pelvis.Footnote 58 Years later, this injury results in her child’s skull being crushed during a vaginal delivery so that it is born with brain damage. This would be an occurrence that affected the mother’s ability to have a normal healthy child and so an action could be brought under section 1(2)(a). It would not be a case of wrongful life, though. If the mother’s pelvis had not been crushed, this child could have had a healthy existence. The occurrence has caused the child’s disability. Such cases can be distinguished from the situation in Toombes.
Notable, too, is the fact that a claim cannot be brought under section 1(2)(a) if the parent would have had a disabled child no matter the circumstances of the intercourse. The occurrence must affect either parent’s ability to have a healthy child. An example is given by Mrs. Justice Lambert:
If, in reliance upon reassuring but negligent advice concerning their genetic status, parents had intercourse which led to the conception and birth of a child suffering from a genetic disability inherited from the parent then, even though but for the negligent advice that child would not have been conceived, that child would not have a lawful claim under the Act.Footnote 59
This requirement, while sometimes being a legitimate causation requirement in parental claims, is harder to justify in claims by children. It is not obvious why a claimant stating “I should not be born, a different, non-disabled child should exist instead” should succeed but one arguing “I should not be born, a different, disabled child should exist instead” should fail. In any event, there is some ambiguity in the reach of Lambert J.’s example. Catherine Bowden has questioned whether it is “limited to the scenario in which any child of either parent would inherit the genetic condition as opposed to only children that they conceived together”.Footnote 60 If the mother alone had received negligent genetic counselling then the requirements of section 1(2)(a) could be met as she “could have had a healthy child even if this would have been with another partner”.Footnote 61 Her ability to have a healthy child will have been affected by the occurrence.
If Bowden’s interpretation is accepted, the Act might cover the factual matrix of Criminal Injuries Compensation Authority v First Tier Tribunal (Social Entitlement Chamber),Footnote 62 where a child, Y, was born with a genetic disorder as a result of the incestuous rape of his mother by her father. The Court of Appeal rejected a claim for compensation under the Criminal Injuries Compensation Scheme. Y, having not been conceived at the time of the rape, was not a “victim of crime”; the victim was Y’s mother. Henderson L.J. recognised that this was a case of wrongful life:
On analysis, his real complaint would have to be that he should never have been conceived at all. A complaint of that nature, however, is not a claim for personal injury, but a claim for wrongful existence, which as this court explained in McKay v Essex Area Health Authority is not one that the law can recognise, or for which compensation could be assessed.Footnote 63
However, the fact pattern matches that posited by Bowden and so could conceivably lie under section 1(2)(a) of the 1976 Act. The mother might not have been able to avoid having a disabled child with this father but could have potentially avoided having a child with these genetic defects were it not for the defendant’s wrong. She could have conceived a (different) child sans disabilities in an act of non-incestuous intercourse.
Regardless of whether the reach of section 1(2)(a) extends to cover cases where a parent would be capable of having a healthy child with a different partner, there is no denying that the interpretation of the 1976 Act in Toombes is a practically significant inroad into the apparent exclusion of wrongful life claims. In addition to pre-conception advice, it could cover situations where one parent passes on a sexually transmitted disease to the child, such as congenital syphilis; for if the parent had waited to conceive until after they had taken antibiotics, a different child would have been born.Footnote 64
VI. Distinguishing “Conception” Cases from “Pregnancy” Cases
A. The Distinction
What both infertility treatment claims and actions under section 1(2)(a) have in common is that the defendant’s wrong occurs before the pregnancy is established. As mentioned earlier, I will use the label “conception claims” to distinguish them from “pregnancy claims”, which follow a similar pattern to McKay. Any distinction between claims under section 1(2)(a), which allows wrongful life conception claims, and 1(2)(b), which bars wrongful life pregnancy claims (or at least those in respect of disabilities) matches, and is supported by, the intention of the Law Commission in the report that led to the 1976 Act. My criticism here is targeted at the drafting of the 1976 Act rather than Mrs. Justice Lambert’s reading of it in Toombes.
The Law Commission did not think that what I have called “conception claims” are “really cases of wrongful life”:
There is we think, a difference between a negligent failure to prevent the birth of an already conceived child and negligence which actually causes the intercourse which results in the conception. In the latter case, we think that the child should be able to claim damages and that they should be assessed by comparison with the child as he would have been had he not suffered from the disability.Footnote 65
Alas, the Commissioners, while clear in their belief that the cases are different, did not bother to enlighten readers with their reasons for arriving at this conclusion. A clue, however, can be found elsewhere in the report. Discussing the bar on wrongful life pregnancy cases, it stated: “Such a cause of action, if it existed, would place an almost intolerable burden on medical advisors in their socially and morally exacting role. The danger that doctors would be under subconscious pressure to advise abortions in doubtful cases through fear of an action for damages is, we think, a real one.”Footnote 66
It therefore appears that the 1976 Act was drafted in a manner to deny wrongful life “pregnancy” claims due to a fear that permitting them would pressure doctors into advising patients to have an abortion.Footnote 67 Is this rationale convincing?
B. Do Wrongful Life “Pregnancy Claims” Encourage Abortions in Dubious Circumstances?
The idea that wrongful life actions encourage doctors to recommend abortions has received a cool reception from some judges. In McKay Griffiths L.J. explicitly referred to, but remained unconvinced by, the Law Commission’s fears. His view was that the “decision whether or not to have an abortion must always be the mother’s; the duty of the medical profession can be no more than to advise her of her right to have an abortion and of the pros and cons of doing so”.Footnote 68
The alleged negligent conduct in most wrongful life claims is not the failure to abort the child but rather, as Noam Gur reminds us, “to diagnose medical problems properly, to bring them to the parents’ attention, and to inform them of the consequences and risks of possible medical treatments”.Footnote 69 Wrongful life claims do not require medical professionals to urge an abortion but merely to give mothers the correct information about the health of the child.
An exception to this classification of the breach might be the facts of the British Columbia case of Cherry v Borsman Footnote 70 where an abortion was performed negligently – part of the placenta was removed but not the foetus – so that the child was born with disabilities. Notwithstanding the judge’s denial that this was a wrongful life claim,Footnote 71 it can be regarded as one because, although the defendant did actually cause the disabilities, the alternative for the child was non-existence. But if such claims were permitted it would not pressure doctors to encourage abortions. Rather, the law would be endorsing the view that doctors performing abortions should do so with reasonable care.Footnote 72
One might counter that there may be situations where, if wrongful life pregnancy cases were permitted, doctors may be tempted to push abortions on mothers. Consider the following:
“A doctor misreads test results and so negligently fails to tell a pregnant woman that her child will be disabled. Discovering his mistake at a later date, and in order to avoid liability to the child, the doctor reveals the correct test results to his patient and encourages her to have an abortion.”
Concerns generated by such hypotheticals are misplaced. In the above scenario, there would be no reason for the doctor to encourage an abortion. If, after revealing the mistake, the patient decided to keep the child, then the child’s existence would be the result of that choice. There may, of course, be situations where she would have had a termination if informed early in the pregnancy but would not want to have a late abortion. But any incentive the doctor has to persuade the patient to have an abortion that she would otherwise forgo could be countered by reference to the fact that such conduct would probably constitute a breach of the doctor’s duty of care, thus exposing him to further liability.Footnote 73 The argument is also over-inclusive: wrongful birth claims are currently permitted, notwithstanding any incentive a doctor may have to advise a patient to terminate her pregnancy.
Perhaps the problem is that permitting wrongful life pregnancy cases entails endorsing the view that an abortion can take place. But abortion is lawful in England, provided the requirements of the Abortion Act 1967 are satisfied. Not only that, but “serious handicap” is also listed as one of the grounds for a late abortion under the Act.Footnote 74 Abortion might provide a factual difference between the cases but it is not a legally significant reason for differentiating them.Footnote 75 It is also worth noting that “infertility claims” under section 1A of the Act endorse the view that the embryo that resulted in the child should have been destroyed so if the law’s concern is the protection of unborn life, then this policy is not being applied consistently.
C. The Distinction in Other Common Law Jurisdictions
Other common law jurisdictions, unbound by a statutory framework akin to the 1976 Act, do not bifurcate conception and pregnancy cases. In Waller v James, the High Court of Australia heard a claim by a child born with disabilities after a doctor negligently failed to advise parents undergoing IVF that the father’s condition (“AT3”) was genetically transmissible.Footnote 76 Consider, too, the Ontario Court of Appeal case of Florence v Benzaquen.Footnote 77 It involved an action by disabled triplets whose mother had taken a fertility drug, Serophene, which increased the likelihood of conceiving multiple foetuses and the associated risks of premature births. Equally, the Court of Appeal of Manitoba decision in Lacroix v Dominique was brought by disabled children whose mother had conceived them while taking a drug to control her epilepsy.Footnote 78 Each case was judged to be for wrongful life and so all of them were rejected. If the parents in Waller were advised properly they would have attempted to ensure only embryos free from AT3 were transferred or used a donor sperm. If the mother in Florence had not taken the drug, she would not have had triplets. If the mother in Lacroix had been informed of the risks of her epilepsy medication, she would have likely chosen not to become pregnant. None of the claimants would have existed but for the negligence. However, if analogous cases were brought in England under the 1976 Act, they would probably succeed under section 1(2)(a). Of course, different approaches in other common law jurisdictions do not necessarily imply that the approach in English law is misguided. But the fact that the conception–pregnancy distinction is not implemented elsewhere indicates there may not be good reasons for upholding it.
D. Counterpoint
An awkward counterpoint to the idea that the common law does not make the distinction is the High Court of England and Wales’s decision in TBS v Metropolitan Police Commissioner,Footnote 79 the facts of which were outlined earlier in this article. Recall that the claimant allegedly suffered damage after discovering that his father was an undercover police officer.
If the wrongful conduct was solely the ending of the relationship and abandoning the family home, then it would be fair to say that this caused his adjustment disorder and so it would not be a claim for wrongful life. But a key part of the claim was the seduction of the mother; without this, the claimant would not exist.Footnote 80 This could, therefore, be regarded as a claim for wrongful life and bolster the view that wrongful life “conception” actions might sometimes be permitted at common law, with the result that such actions under the 1976 Act are rendered less incongruous.
Not too much weight should be placed on this counterexample, however. For one thing, the analysis in this strike-out application could have been more thoroughly developed. The judge did not consider this a wrongful life claim and distinguished McKay on unconvincing grounds, insisting “[TBS] is not aggrieved at having been born, but he does complain that the circumstances of his father mean that he has suffered the Adjustment Disorder”.Footnote 81 Yet this does not get around the core problem with these claims: that the defendant’s alleged wrong has caused the claimant to exist. More fundamentally, at no point was a distinction between “conception” and “pregnancy” claims articulated as a reason for distinguishing TBS and McKay. If, however, TBS is seen as allowing wrongful life “conception claims” at common law, then it merely indicates that the chaotic nature of English law’s treatment of wrongful life claims goes beyond the legislative interventions identified earlier in this article.
In sum, it appears that the current law does not treat like cases alike. As Nicholas McBride rightly observes, private law “will not be able to maintain its legitimacy if it is perceived to treat its subjects in an arbitrary and unequal way”.Footnote 82 It should not depend upon brute luck or arbitrarily favouring one class of people over another.Footnote 83 At present, and in the absence of another reason for distinguishing the wrongful life “conception” and “pregnancy” claims, the 1976 Act does not satisfy this requirement.
VII. The Options for Reform
A. A Negligence Action at Common Law
There is significant inconsistency in the way that English law handles wrongful life cases. If it is accepted that the distinction between pregnancy and conception claims is not justified it becomes necessary to examine the best response to this problem. Should wrongful life actions be expanded to include pregnancy claims or retracted to exclude conception claims? Or can another basis for delineating the claims be found? As stated earlier, a range of reasons were proffered in McKay for denying the claim. Of these, the most formidable now appears to be the difficulty claimants face in establishing that they have suffered any actionable damage.Footnote 84 In what follows, I will examine whether, if the 1976 Act were repealed, a common law action would be consistent with negligence’s damage requirement before briefly discussing potential legislative solutions. Although the focus is on the damage question, it will become apparent that there is a significant overlap between this issue and concerns about devaluing the lives of people with disabilities.
Damage is necessary to complete a negligence claim: it is the “gist of the action”.Footnote 85 It has also been described as a “nebulous”Footnote 86 concept and “the object of surprisingly little analysis by academics working in common law countries”.Footnote 87 On the conceptual question of what constitutes damage, there seem to be two main camps. One sees damage as, in the words of Lord Hoffmann in Rothwell v Chemical & Insulating Co. Ltd., “an abstract concept of being worse off, physically or economically, so that compensation is an appropriate remedy”.Footnote 88 For convenience, we might refer to this as the counterfactual account of damage: a claimant will suffer damage if they are made worse off.Footnote 89
An alternative view of damage does not necessarily require a claimant to be worse off than they otherwise would be without the defendant’s negligence. This rights-based account might regard a person as having suffered damage where there has been “interference with a right or interest recognised as capable of protection by law”.Footnote 90 Call this the non-counterfactual account of damage.
Two powerful proposals have been advanced for reconciling wrongful life claims with negligence law’s actionable damage requirement and they broadly align with these different accounts of damage. These are:
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(1) A counterfactual view where wrongful life claimants will suffer damage when their disabilities are so severe that any good in life is outweighed by the burdens. In other words, when life is on-balance bad.
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(2) A non-counterfactual damage where wrongful life claimants will suffer damage when placed in a position where they have disabilities (or potentially other hardships).
In what follows, I will analyse these proposals before turning to consider possible legislative solutions.
B. The Counterfactual View of Damage
For wrongful life claimants, the counterfactual account of damage involves comparing existence with a disability and the state that the claimant would have been in but for the breach of duty, which is non-existence. Weighty judicialFootnote 91 and academicFootnote 92 opinion denies that a comparison between existence and non-existence can ever be made, but I will remain agnostic on that issue and assess the counterfactual account on different grounds. I am also going to presume that the idea, put forward by some philosophers, that life is always worse than non-existence is not one that the law would accept.Footnote 93
A rich philosophical literature posits that while existence is usually preferable to non-existence, there are certain circumstances where this is not the case.Footnote 94 Although the comparison can be confounding, such a view would perhaps value non-existence as neutral.Footnote 95 An important articulation and defence of this position in the legal context comes from Rosamund Scott, who, building on these studies, contends that claimants could suffer damage if they are “born with a condition that is so severe that any goods in life are outweighed by the burdens”.Footnote 96 Existence could constitute damage when non-existence is preferable to a life with disabilities.Footnote 97 Arguments along these lines have found a sympathetic audience with some judges. For example, when wrongful life reached the High Court of Australia in Harriton v Stephens, Kirby J. in his dissenting judgment was of the view that “it is arguable that a life of severe and unremitting suffering is worse than non-existence”.Footnote 98
Very few conditions would be severe enough to give rise to an action as they would have to render life of “sub-zero quality”.Footnote 99 Tay–Sachs syndrome and Lesch–Nyhan syndrome are possible candidates.Footnote 100 This sets the bar very high and would mean many claimants in reported wrongful life decisions could not establish damage under this proposal (although it would still be possible for their parents to bring a claim for wrongful birth). For example, Evie Toombes’s disabilities are not severe enough to render her life unworthwhile. A para horse rider, campaigner for hidden disabilities and author of a book: it is not hard to see why one judge described her as a “remarkable young woman”.Footnote 101 This threshold for establishing damage would also exclude wrongful life actions by people with Down’s syndrome, as most people with this disability report living very happy lives.Footnote 102
It would not be incoherent for the law to adopt this position and declare that life can be damage when it is so bad that non-existence is preferable. Allowing wrongful life claims in these limited circumstances has many advantages over the current distinctions made by the 1976 Act, which, as we have seen, permits these actions in an arbitrary and haphazard manner. However, there are potential downsides to this approach.
Disabled children would have to go to court or have claims brought on their behalf, arguing that non-existence is preferable to their current position. The line between eligible and ineligible conditions might be difficult to drawFootnote 103 – something that proponents of this proposal do acknowledge.Footnote 104 It is not unimaginable that judges, when faced with a sympathetic claimant who would otherwise be left to rely on comparatively meagre state benefits, might be tempted to expand the range of conditions under which life would be considered “on-balance bad” to permit recovery.
If this happens, successful wrongful life claims may not be confined to only the most serious conditions and the law would declare a greater range of disabilities to be ones where non-existence or death is preferable to living with them. This could send an undesirable message to other people with those disabilities, many of whom may be leading fulfilling lives. Crennan J. in Harriton maintained that it is “odious and repugnant to devalue the life of a disabled person by suggesting that such a person would have been better off not to have been born into a life with disabilities”.Footnote 105 Such views are not idiosyncratic, nor confined only to the judiciary. If the conditions encompassed by wrongful life claims are expanded beyond those where there is broad agreement that life is on-balance bad, it could result in the implementation of a forensic process that is, in the words of Stephen Todd, “demeaning to disabled people”.Footnote 106
C. Counterarguments
To this argument, one might respond that similar judgments are already made in analogous legal contexts.Footnote 107 Cases of withdrawal of treatment from severely disabled neonates under the parens patriae jurisdiction or the Children Act 1989 are sometimes marshalled in support of wrongful life claims.Footnote 108 There, the courts must determine whether continued medical treatment is lawful in the child’s best interests, which are assessed from the assumed view of the patient.Footnote 109 The term “best interests” is used “in its widest sense to include every kind of consideration capable of bearing on the decision” and the court “must do the best it can to balance all of the conflicting considerations in a particular case with a view to determining where the final balance lies”.Footnote 110 Although there is a presumption in favour of preserving life, it is not irrebuttable: it “may be outweighed if the pleasures and the quality of life are sufficiently small and the pain and suffering and other burdens are sufficiently great”.Footnote 111 Does this not imply that the courts already recognise that continued life under certain conditions is on-balance bad? If the circumstances where wrongful life claims are allowed and treatment can be withdrawn from neonates align, why cannot judges maintain a strict standard when holding that life with certain disabilities is so bad that it constitutes damage?
This example bolsters the idea that there are situations in which the law holds that, from the child’s perspective, existence can be harmful. Alas, it is not a perfect analogy for refuting the idea that judges would successfully confine recognising damage to only the most serious cases. Questions regarding whether life is on-balance bad are covert in the withdrawal cases – the question is whether continued treatment is in the child’s best interests – but overt in the damage question. Furthermore, as Gur states, “one of the main factors that impel judges to maintain a stringent severity requirement in withdrawal of treatment cases is the drastic implications of a decision to withdraw life-sustaining treatment, namely, bringing about the death of a child”.Footnote 112 This factor is absent in wrongful life cases. As such, the fact that judges seem to have been reasonably successful in taking a restrictive approach in treatment withdrawal cases does not necessarily indicate that wrongful life claims will be similarly circumscribed.
It could be argued that the law already indicates that life with serious disabilities might be on-balance bad by recognising “serious handicap” as a basis for a late termination under section 1(1)(d) of the Abortion Act 1967. Placing to one side the significant criticisms that have been levelled at this provision,Footnote 113 it could be argued that in the most severe cases, where life will be on-balance bad, abortion could be said to be in the interests of the foetus.Footnote 114 Nevertheless, there are sufficient differences between this context and that of wrongful life to weaken the analogy.
The threshold of “serious handicap” is not necessarily as high as the “on-balance bad threshold”.Footnote 115 Prescriptive guidance on what counts as a “serious handicap” is scarce.Footnote 116 Still, there is some evidence of abortions being performed under this ground on foetuses diagnosed with cleft palates or with Down’s syndrome.Footnote 117 These are not conditions that render life on-balance bad and so termination for these mid-spectrum conditions is likely to be based on (supposed) parental interests rather than the interests of the child. The “serious handicap” ground does not, therefore, indicate whether the range of conditions grounding wrongful life cases could be tightly circumscribed, as neither doctors nor judges have confined them in this way (as the legislation does not, on the most plausible reading, appear to require it). Acceptance of s 1(1)(d) of the Abortion Act 1967 or the withdrawal of treatment for severely ill neonates does not, therefore, provide a convincing case in favour of allowing claims for wrongful life.
D. A Risk Worth Taking?
One might contest Todd’s claim regarding a demeaning forensic process by insisting that disabled claimants would rather receive compensation, particularly if it can improve their lives. Kirby J. in Harriton emphasised that awarding damages in wrongful life cases would provide disabled children with “practical empowerment”, enable them to “lead a more dignified existence” and provide them “with a better opportunity to participate in society than he or she might otherwise enjoy where the burden of care and maintenance falls on the disabled person’s family, on charity or on social security”.Footnote 118 Julie McCandless and Kirsty Horsey point out that in wrongful life claims any damages would be for the child’s life rather than its upbringing during its minority and that such actions “can remove some stigma from a parent who prefers not to make a wrongful birth claim, worries that this somehow makes a statement that they did not want and did not love their child”.Footnote 119 Toombes illustrates this. Her mother had not brought a claim for wrongful birth, but Evie Toombes was able to bring an action herself under the 1976 Act once she was an adult.Footnote 120
Let us now imagine that judges successfully restrict wrongful life cases to only the most severe disabilities where there is general agreement that the child’s life is overwhelmed with suffering. In such circumstances, interventions to keep the child alive are unlikely to be in its best interests and so will be unlawful.Footnote 121 Where life is on-balance bad, the child is unlikely ever to have capacity and its lifespan is likely to be short. Any action would be brought on the child’s behalf by its parent(s).
Given this, some of the advantages of a wrongful life claim over a wrongful birth claim by parents are potentially diminished: children whose lives are on-balance bad may have few opportunities to participate in society, regardless of any monetary award. The advantages of a claim being brought in the child’s name over a parental one might be minimal (though certainly not zero) when the child is unlikely to be aware of any action.
There are therefore benefits and risks to recognising wrongful life claims, even under the on-balance bad account of damage. Where the scales fall is a subject about which reasonable debate can ensue. Comments from a recent case, Crowter v Secretary of State for Health and Social Care,Footnote 122 challenging the lawfulness of section 1(1)(d) of the Abortion Act 1967 on the grounds that it expressed negative stereotypes about disabled people contrary to the European Convention on Human Rights, are apposite in these circumstances. Lord Justice Underhill maintained that whether the “serious handicap” ground was perceived as sending any negative message about the living disabled “depends on the perspective – itself no doubt reflecting the circumstances and values – of the particular individual”.Footnote 123 The same can be said of wrongful life. Ultimately, it comes down to the problem of line-drawing and whether one believes this can be satisfactorily achieved in this context. While such difficulties are an omnipresent feature of the law,Footnote 124 and the counterfactual proposal is an enormous improvement on the current law’s arbitrariness, the courts’ reluctance to recognise damage in wrongful life cases is not unreasonable. Some of these concerns are, admittedly, speculative but, with respect, so too are the benefits that such litigation would bring and the idea that judges would tightly confine the list of eligible conditions.
E. The Non-Counterfactual View of Damage
A beguiling proposal for avoiding the potential difficulties with the counterfactual or comparative view of account has been put forward by William Macaskill and Sandy Steel. They claim that an alternative definition of damage can be utilised, which they label the “causal account”: “If A causes B to be in a bad state, then A damages B.”Footnote 125 From this, they argue that in wrongful life claims the defendant’s negligence has caused the claimant to be in a “bad state” in violation of “the right not negligently to be caused physical non-comparative damage” or a “right not to be in a state of severe disability”.Footnote 126 By removing the need to compare existence with non-existence, damage would be established in a case such as Toombes merely by the fact that the defendant’s negligence caused the claimant to exist in a state where she had disabilities. It would be immaterial that this was the only way that she could exist. Nor would it matter if the claimant’s life was worth living.
While this would allow wrongful life claimants to leap the damage hurdle, it potentially raises other concerns. Macaskill and Steel’s proposal contains a rider that claims would be for “severe” disabilities.Footnote 127 This would mean that wrongful life claims for trivial injuries would not be covered. Yet once the de minimis threshold is cleared, the seriousness of a claimant’s harm is not normally relevant in establishing damage (though, of course, it will be crucial in assessing the amount of damages that might be awarded). A minor fracture is normally regarded as damage in negligence but might not be regarded as a severe disability. Macaskill and Steel’s argument, recall, is different from arguing that life is damage when it is on-balance bad (where questions of seriousness would be determinative). If A accidentally dropped a rock on B’s toe, fracturing it, then A will have caused B to suffer actionable damage under normal negligence principles. Why, then, would A placing B in a position where B has a fractured toe not be actionable under the non-counterfactual account? If this account does not cover minor injuries, it would be inconsistent with the normal principles for determining damage.Footnote 128 If it does include milder injuries then damage would be a very expansive concept.Footnote 129 It could come close to holding that the child has “a right to be born whole or not at all”.Footnote 130 Accepting this reasoning, according to Stephenson L.J. in McKay, would:
mean that a doctor would be obliged to pay damages to a child infected with rubella before birth who was in fact born with some mercifully trivial abnormality. These are the consequences of the necessary basic assumption that a child has a right to be born whole or not at all, not to be born unless it can be born perfect or “normal,” whatever that may mean.Footnote 131
Echoing these views, Ackner L.J. noted the “odd position” that embracing such arguments would entail a child born “with a very minor disability, such as a squint” being entitled to sue the doctor failing to advise an abortion.Footnote 132
These remarks were deplored by Kirby J. in Harriton: “The catastrophic injuries suffered by the appellant, and by persons like her, cannot be equated with a squint. To suggest that the appellant’s disabilities are analogous to a squint is absurd and insulting.”Footnote 133 This appears to misunderstand the analogy that Ackner L.J. was making. Pace Kirby J., Ackner L.J. was not saying that catastrophic injuries are the same as a squint.Footnote 134 Far from it. Rather, if the damage is assessed non-counterfactually (as “life with disabilities” rather than “life with disabilities that render non-existence preferable to existence”) then it would include minor disabilities too (above the de minimis threshold). There is nothing insulting about Ackner L.J.’s dicta and no conclusions about the seriousness of Alexia Harriton’s disabilities can be drawn from it. From this, we might conclude that the non-counterfactual account of damage avoids some of the potential problems with the counterfactual account but only by creating equally significant ones.
F. Do Away with Damage?
While not fatal to the recognition of wrongful life claims, the above discussion reveals a tension between them and negligence’s damage requirement. Legislation could remove some of these difficulties. A reformed statute could list the conditions deemed to make life on-balance bad, thus reducing the risks with the counterfactual approach or eliminate some of the problems with the non-counterfactual account by confining liability to “serious” disabilities (and perhaps providing some firm guidance as to what these encompass). Again, the desirability of this might depend on one’s views of the correct balance between the risks and benefits of permitting such actions. Also, any statutory guidance might be challenging to draw in a way that covers children born with multiple disabilities, a combination of which might render suffering so bad that non-existence is preferable but, alone, would not lead to negative welfare.Footnote 135
Proponents could bite the bullet and argue that such actions should simply be permitted and defendants should have to pay the costs of any disabilities even if they would have still been present but for the defendant’s wrongdoing. There is some precedent for this. As detailed earlier, the Congenital Disabilities (Civil Liability) Act 1976 allows wrongful life “conception” claims. If the requirements for the statutory claim are met, then “the child’s disabilities are to be regarded as damage resulting from the wrongful act of that person”.Footnote 136 This legal fiction could be extended to all wrongful life claims. Children would recover the cost of their disabilities even if they would not have existed without them.
These options avoid some of the potential pitfalls with defining damage in wrongful life claims that have been highlighted earlier. It is worth asking, though, whether, in developing such legislation, the tort system should treat wrongful life claimants in particular as a special case more deserving of tort compensation than other patients who have suffered devastating injuries after a medical accident but cannot establish that the defendant’s breach caused their damage.Footnote 137 Imagine an Eddie Toombes, born with disabilities that were not the result of an occurrence by a tortfeasor. His claim would be a non-starter. One can endorse the idea that the needs of such children should be met – perhaps through alternative compensation schemes – without supporting the maintenance and expansion of tort actions for wrongful life. Consideration of the desirability of alternative compensation systems for birth injuries,Footnote 138 including wrongful life claimants,Footnote 139 is outside the scope of this article but may provide a better solution.
VIII. Conclusion
Margaret Brazier once described the Congenital Disabilities (Civil Liability) Act 1976 as doing “little for the reputation of Parliamentary draughtsman” due to its “complex and convoluted rules” proving to be a “nightmare to operate in practice”.Footnote 140 If the arguments in this article are accepted, this appears, if anything, to be an understatement, at least so far as the legislation’s treatment of wrongful life actions goes.
One might naturally expect legislation with “disabilities” in its title to have such a focus, but the fact that more novel and nebulous forms of damage fall outside of its scope leads to a potential inversion of tort law’s hierarchy of protected interests:Footnote 141 claims for disabilities are curtailed by the Act in circumstances analogous to McKay but novel forms of damage are not subject to the statutory bar on wrongful life “pregnancy” claims.
Of far more practical importance and concern, given that the common law would probably prevent many of those novel claims, is the legislation’s division between impermissible wrongful life “pregnancy” cases and “conception cases”, the latter of which are allowed. Exacerbating such problems is the lack of a convincing justification for differential treatment. It is hard to escape the conclusion that the law is not treating like cases alike.
To respond to this inconsistency, the boundaries of the law could be redrawn. If the 1976 Act were repealed then a common law negligence claim would likely be fettered by that tort’s damage requirement. The two strongest suggestions for framing damage in wrongful life claims were examined: one counterfactual and one non-counterfactual. While both accounts are an improvement on the 1976 Act’s framework, they are not without potential downsides and so the common law’s distaste for such claims cannot be lightly dismissed. Legislation could be introduced to allay some of these concerns, but, ultimately, whether the benefits of allowing these actions outweigh the downsides is a subject on which reasonable debate could be had (though, personally, I think the common law bar is justified).
Where there is much less room for dispute is on the undesirability of maintaining the status quo under the 1976 Act. There is no principled reason why Evie Toombes’s claim should succeed, but Mary McKay’s should fail. While one can admire the noble motives that led to its passing, the Congenital Disabilities (Civil Liability) Act 1976 has long outlived its usefulness.Footnote 142 Its upcoming 50th anniversary should be marked by its repeal or, at the very least, root and branch reform.
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