Reproductive Wrongs 2 Flashcards
Wrongful Birth Claims + their Admissability (12 cards)
What happened in Khan v Meadows? (WRONGFUL CONCEPTION)
Meadows teste pre-natally for haemophilia gene that was performed negligently -> led to son being born with haemophilia and autism
What was the decision in Khan v Meadows?
Scope of duty only towards haemophilia - awarded damages only associated w/ it.
Should the son have been able to bring a claim in his own right?
Duty of care = not the patient
Breach = Yes however,
Causation = Drs negligence didn’t cause the ‘harm’ + what ‘harm’ has the child suffered?
What are wrongful life claims?
A claim brought by the child in the instance of severe disabilities
What examples of negligence can result in a wrongful life claim being brought forward?
Negligent pre-natal testing or advice = deprived mother of a choice to terminate pregnancy or treatment
Negligent pre-conception advice and testing
What happened in McKay v Essex?
McKay born severely disabled after Dr negligently failed to diagnose mother w/ rubella during pregnancy
What was the decision in McKay?
Denied - role of sanctity of life principle in decision
What was the reasoning for the decision in McKay?
It was deemed contrary to public policy that a doctor should owe a child a duty of care that they should not exist + the law does not recognise being born as an intrinstc damage + impossible to quantify the damages of existence v not existence
What does Lydia Brown state about wrongful birth claims?
Without the social conditions enforcing unfairness, parents would not need to go through problematic legal arguments to seek out otherwise inaccessible services or healthcare.
What is the name of the case which revived wrongful life claims?
Toombes v Mitchell [2021]
What happened in Toombes v Mitchell?
Negligent pre-conception advice regarding folic acid led to child being born with severe defects due to spinal cord tethering
How did Toombes v Mitchell distinguish itself from McKay v Essex?
Based on the wrongful conception of the child - if had been given adequate pre-conceptual advice, a different child would have been conceived.
