Reproductive Wrongs 1 Flashcards
Wrongful Conception and Wrongful Birth (15 cards)
What’s the definition of reproductive negligence?
Negligently performed procedures by professionals, within the context of reproduction, that effect reproductive choice or fertility.
What are the requirements of the tort of clinical negligence?
Duty of care -> breach of that duty -> causation of damage from that breach -> fair, just, and reasonable to impose liability
What are the limitations of the tort of clinical neglignece when applied within the context of reproduction?
Tort law is narrowly focused on physical harm - needs to contemplate full human experience rather than only recognising ‘parts’ of us as injured (NICOLETTE PRIAULX)
What 3 cases are brought forward?
Wrongful pregnancy, wrongful conception and wrongful life - all under wrongful birth.
What is meant by wrongful pregnancy?
When parents sough to avoid having a child
What happened in McFarlane v Tayside Health Board? (WRONGFUL PREGNANCY)
Negligently performed vasectomy led to the wrongful pregnancy and eventual wrongful birth - already had 4-5 children and did not want more
What damages did the McFarlanes try to seek compensation for?
Claimed for damages associated with pregnancy and birth + costs involved with raising the child
What was the decision made by the HOL in McFarlane?
Costs involved with raising the child born as a result of negligently performed sterilisation seen as ‘pure economic loss’ - reversed previous case law
What was the reasoning for the decision in McFarlane?
Common sense thinking about the reasonable man’s view of the ‘blessed’ birth of a healthy baby - distributive justice concerns over the public’s view on the matter.
What is the issue of compensation from the NHS?
Judicial discomfort with the idea that NHS, a publicly funded system, has to pay for child-rearing costs.
What are the 2 cases which create exceptions to the rule set in McFarlane?
Parkinson v St James + Rees v Darlington
What happened in Parkinson v St James?
Negligently performed sterilisation resulted in the birth of a disabled child
What happened in Rees v Darlington?
Blind woman that requested sterilisation, with disability forming part of her reasoning to do so, wrongfully falls pregnant.
What was the decision in Rees v Darlington?
Given conventional award of £15k to disabled mother for interference with reproductive autonomy
What is problematic about the distinction drawn between healthy and disabled children/parents?
disability seen as a burden large enough to be awarded damages - reflects moral judgments on lives
