wrongful birth CASES

In English law, wrongful birth is a claim by a parent that negligent advice or treatment deprived them of an informed choice to avoid conception or to terminate a pregnancy. It is distinct from “wrongful life”: children cannot recover on the basis that they should not have been born, although they may have separate claims where negligence caused disability before birth.

Definition and Principles

Two broad patterns arise. First, negligent sterilisation, contraception or advice leads to the birth of a healthy child that the parent sought to avoid. Secondly, negligent pre-conception or antenatal advice (or scanning) leads to the birth of a child with a disability that would otherwise have been avoided or the pregnancy would have been ended. The parent must prove breach, a causal link to the conception or continuation of the pregnancy, and that they would have acted differently if properly advised. Modern consent law requires discussion of material risks and reasonable alternatives; failure to inform can found liability.

Damages Framework

Healthy child cases. Parents may recover the costs and losses associated with the pregnancy and birth (including pain and suffering and short-term financial losses). The ordinary costs of raising a healthy child are not recoverable. Courts recognise a modest conventional award for loss of reproductive autonomy in appropriate cases.

Child with disability. In addition to pregnancy-related losses, parents may recover the additional reasonable costs attributable to the child’s disability (care, equipment, therapies, accommodation adjustments). Ordinary child-rearing expenses remain irrecoverable.

Scope of duty. Recovery is limited to risks within the scope of the advice or investigation undertaken. If negligent counselling related to a specific genetic condition, damages generally track the consequences of that condition, not unrelated conditions.

Common Examples

• Missed or misreported antenatal screening where parents would have chosen termination if properly informed of a serious condition.
• Negligent failure to advise on known genetic risks before conception, leading to the birth of a child with the very condition about which advice was sought.
• Failed sterilisation or contraception counselling errors resulting in an unplanned but healthy birth.

Child Claims and the CDCLA

“Wrongful life” claims (that non-existence would have been preferable) are not recognised. However, a child may sue under the Congenital Disabilities (Civil Liability) Act 1976 where pre-conception or antenatal negligence causes disability. That is conceptually different from a parent’s wrongful birth claim based on loss of choice.

Legal Implications

• Causation and evidence: parents must show, on the balance of probabilities, that they would have avoided conception or ended the pregnancy if properly advised. Contemporaneous records and clear witness evidence are crucial.
• Mitigation and benefits: damages are assessed on orthodox principles; double counting is avoided and public-funding interfaces must be considered when quantifying care.
• Limitation: the primary period for the parents’ claim is generally three years from the date of knowledge; child claims under the CDCLA follow the usual rules for minors.

Practical Importance

Advisers should gather the clinical notes, referral and screening records, consent discussions, and any genetic counselling materials. Frame the counterfactual carefully: what information should have been given, and what decision would the parents have taken? In disability cases, build a robust life-care and accommodation plan tied to the specific condition and its prognosis. For defendants, test scope of duty, the credibility of the asserted decision, and whether any alleged losses fall outside the recognised heads of recovery.

See also: Clinical negligence; Informed consent; Scope of duty; Congenital Disabilities (Civil Liability) Act 1976; Loss of a chance; Limitation; Quantum of damages.