Wrongful birth
and wrongful conception certainly sound like tricky subjects to navigate. The
question is, what do these terms mean, and are you entitled to make a claim?
As a person who can
physically conceive and give birth to children, having the choice of whether to
keep a pregnancy is a human right. In particular, it is against these rights to
not be able to make informed consent about whether to keep a child based on certain
factors. There are many questions that may go through a persons mind - is abortion a good option? What choices do I have?
These factors all
fall under the legal jargon of wrongful births.
So, what exactly
are wrongful births, how does wrongful conception fall into it,
and what can you do if you’ve fallen victim to this? Find out all this, right
here…
What is a Wrongful
Birth?
Wrongful birth occurs when a child is born that wouldn’t
have been born if it weren’t for the negligent treatment of a doctor. This can
occur due to a failed medical procedure to avoid birth, or a lack of informed consent
to continue with a pregnancy.
In these cases, the
parent or parents of a child may claim against their doctors who failed to put
the correct preventative measures in place to avoid the birth.
This sort of case
falls under the laws of medical malpractice and negligence. It may sound a
little complicated, but there are a number of cases where the claimants have a
case, including:
Wrongful Conception
Wrongful
conception occurs when a
person becomes pregnant, even after having a vasectomy or sterilisation
procedure. During these medical procedures, the fallopian tubes will either be
permanently blocked or sealed, or the vasa deferentia are cut or tied. Both procedures are said to be 99 percent effective, helping to prevent pregnancy without any
other form of contraception.
These procedures
are both voluntary, so the informed decision has been made to avoid pregnancy.
This means that, if the individual then falls pregnant, it is a failed
procedure. This may then lead to a lawsuit being brought to the medical
professionals in charge of the surgery.
Failure to Warn About Child’s Disabilities
On the other hand,
a wrongful birth claim may go ahead if a child is born with a disability
that the parents weren’t aware of. The claim would only go ahead if the parents
would have otherwise terminated the pregnancy if they had known about the
abnormality.
In a lot of cases,
physical abnormalities can be detected within the scans. However, sometimes
they may be missed; it’s rare, but it does happen.
Although it may be
difficult to hear it, some parents feel as though their lives won’t allow for
the emotional and financial strain of having a disabled child. Alternatively,
the child may suffer when they’re born, and the parents may feel the best thing
to do is to terminate it to avoid any unnecessary suffering.
Some of the birth
defects that may follow under this radar include:
·
Down’s
syndrome
·
Clubbed
feet
·
Hole in
the heart
·
Spina
bifida
·
Cystic
fibrosis
·
Brain
malformations
Ultimately, the
whole issue relies on one single crux; informed consent. The parents of any
child must be informed enough to be able to make decisions regarding any future
medical procedures. It works the same as any other surgery, so the same sorts
of rules and laws apply.
Failure to Test the Parents
Correctly for Genetic Disorders
Following a similar
wavelength, a mother or father may believe they are predisposed to a certain
genetic conditions, and ask their doctor for tests before conceiving. If these
tests do not go ahead properly, and fail to detect an abnormality which is
later passed to a child, this may be cause for a wrongful birth claim.
In these cases, the
person may conceive a disabled child without knowing that they were at a risk
for certain genetic disorders. Then, either during the first few scans, or even
after birth, the predicted abnormalities may become apparent.
Failed Abortion
Although this is
unlikely to happen, there are cases where a pregnant person may choose to have
an abortion, but the procedure fails. This occurs in around every 2.3 per 1000
cases for surgical abortion, and 1-14 per 1000 for early medical abortions
(performed before week 9).
They may choose
this path for a number of reasons, be it:
·
Abnormalities
in the foetus
·
Financial
inability to care for the child
·
Rape
·
Being
too young
·
Medical
risks with going to full-term
·
Personal
choice
Whatever the
reason, once a parent decides to terminate a child, they expect the procedure
go through. So, if it doesn’t work and the baby is still born, they may be able
to claim for wrongful birth.
Can You Claim for
Wrongful Birth or Wrongful Conception?
The short answer is
yes, you can claim for wrongful birth or conception, with the help of a
lawyer. However, there are some factors you should be aware of, including when
you can claim, and what you can claim for.
When Can You Make a Claim for
Wrongful Birth?
Naturally, whether
you can make a successful claim or not depends on a number of different caveats.
These include:
·
Whether
the patient was completely unaware about their child’s disability.
·
If a
failed sterilisation occurs, the victim can only make a claim if the child
that’s born is disabled.
·
If the
claimant is able to establish that their treatment was negligent; the treatment
fell below the usual standards of care.
·
If it
can be established that the baby would never have been born had this negligence
not occurred. There has to be sound evidence provided by the parent or parents
to prove this.
What Can You Make a Claim For?
Specifically, you
can claim for:
·
Any
financial losses the claimant may incur from having to care for a child they
hadn’t planned to keep.
·
Any
financial losses from having to care for a disabled child they would have
otherwise terminated.
·
Financial
damages from the lawsuit itself.
·
Any
physical trauma the pregnant person may incur giving birth to this unplanned
child.
·
Any
physical trauma the child itself experiences due to their abnormality or
disorder.
·
Any
emotional trauma the parent or parents may incur from giving birth to this
child.
·
Any
emotional trauma the child experiences.
Where to Go from
Here?
As you can see, wrongful
birth is a pretty interesting area of law. Although it’s a hefty topic,
it’s important that people who can get pregnant are aware of all their
rights and, where these rights aren’t met, the avenues they can take.
After all, not
everyone can have the money and emotional fortitude to raise a child. So,
giving everyone the option to make an informed decision about theirs and their
potential child’s future is paramount.
Have you had any
experience within this area of law, and have a story to tell? Be sure to leave
your thoughts in the comments down below.
