Tuesday, 17 November 2020

Wrongful Birth and Wrongful Contraception: What are Your Rights?

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.

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