McFarlane v Tayside Health Board [1999] UKHL 50

A couple had a healthy child after a negligently performed vasectomy. They sued for damages, including the costs of raising the child. The House of Lords held they could claim for the pain of pregnancy but not the financial cost of upbringing.

Facts

Mrs and Mr McFarlane, a married couple with four children, decided against having more children for financial reasons. Mr McFarlane underwent a vasectomy performed by a surgeon employed by the Tayside Health Board. He was subsequently given negligent advice that his sperm count was negative and he no longer needed to use contraception. Relying on this advice, the couple stopped using contraception, and Mrs McFarlane became pregnant. She gave birth to a healthy daughter, Catherine. The McFarlanes sued the Health Board in delict (the Scottish equivalent of tort) for the financial losses associated with the upbringing of their unplanned child, and for the pain, suffering and inconvenience suffered by Mrs McFarlane during her pregnancy and birth.

Issues

The primary legal issue before the House of Lords was whether parents of a healthy but unplanned child, conceived as a result of professional negligence, are entitled to recover damages for the economic cost of raising that child. A secondary issue was whether damages could be claimed for the physical discomfort and pain associated with the pregnancy and birth.

Judgment

The House of Lords unanimously held that while the mother was entitled to a conventional award (solatium) for the pain and suffering of pregnancy and birth, the parents could not recover the costs of bringing up their healthy child. The reasoning varied between the Law Lords, but centred on principles of legal policy and distributive justice.

Lord Slynn of Hadley

Lord Slynn found that the doctor had a duty of care and the financial loss was a foreseeable consequence of the negligence. However, he concluded that it was not fair, just, or reasonable to impose liability for the full costs of the child’s upbringing. He considered it more appropriate to award a conventional sum to reflect the immediate wrong, but not the lifelong financial burden, stating:

The doctor undertakes a duty of care in regard to the prevention of conception. He does not assume a duty of care in regard to the prevention of the birth of a healthy child or to pay for its maintenance… It is not a duty which he can be required to accept or which the law should impose on him.

Lord Steyn

Lord Steyn’s judgment focused on the concept of ‘distributive justice’. He argued that while corrective justice might suggest the health board should pay for the foreseeable economic loss, the law of tort must consider wider community values. He famously remarked:

It is possible to view the case simply from the perspective of corrective justice… On this simplistic approach the parents are entitled to be compensated for the cost of bringing up Catherine. But the law of tort is not an island, entire of itself. The proposed liability has an impact on the purchasing of health services. It is acutely sensitive to the difficult social and moral issues which surround the birth of a child… Can it plausibly be argued that the parents of Catherine have suffered a loss?… The law must take the birth of a normal, healthy baby as a blessing, not a detriment.

He concluded that allowing such a claim would be offensive to ordinary people’s notions of what is reasonable, humorously adding:

Instinctively, the traveller on the Underground would consider that the law of tort has no business to provide legal remedies consequent upon the birth of a healthy child, which all of us regard as a valuable and good thing.

Lord Hope of Craighead

Lord Hope drew a distinction between the harm done by the unwanted pregnancy and the ‘blessing’ of a healthy child. He argued that the liability of the tortfeasor should be limited to the physical effects of the pregnancy and birth, for which a conventional award was appropriate. For the costs of upbringing, legal policy required the claim to fail:

The birth of a healthy child is a benefit, not a detriment. The doctor’s negligence has deprived the parents of the opportunity to live their lives in the way that they had planned. But it has resulted in the creation of a human life. The parents’ wishes are not paramount.

Lord Clyde

Lord Clyde agreed that the claim for upbringing costs was too remote and should be excluded on policy grounds. He argued that the joy and benefits of having a child, while not quantifiable to be set off against the financial costs, meant that the law should not recognise the birth of a healthy child as a net loss. He allowed the claim for solatium relating to the pregnancy as a direct and foreseeable physical consequence of the negligence.

Lord Millett

Lord Millett approached the issue from the perspective of restitution. He argued that the parents sought to retain the benefits of parenthood while transferring the financial responsibilities to the health board. He viewed this as unjust:

The pursuers seek to retain the benefit of their child’s existence, which they are not prepared to forgo, while insisting that the defender must bear the entire financial cost of bringing her up for 16 years. In my opinion this is not and should not be the law. The parents of a child cannot treat him as a financial liability, debit the cost of his upbringing to a third party, and claim to have suffered a recoverable loss.

Implications

This landmark decision established that, in the UK, damages for the economic costs of raising a healthy child born from a ‘wrongful conception’ are irrecoverable. The court moved beyond traditional tests of foreseeability and causation, basing its decision firmly on grounds of public policy, specifically that it is not ‘fair, just and reasonable’ to impose such liability. The judgment affirmed that while the physical burdens of an unwanted pregnancy are compensable, the birth of a healthy child is legally viewed as a blessing that cannot constitute a compensable ‘loss’ in the context of upbringing costs. This principle has been foundational in subsequent cases concerning wrongful birth and conception.

Verdict: The appeal was allowed in part. The pursuers were held to be entitled to damages for the pain, discomfort, and inconvenience of the pregnancy and birth, but their claim for the financial costs of raising the child was dismissed.

Source: McFarlane v Tayside Health Board [1999] UKHL 50