Abstract

Pietsch, Chelsea In a claim of negligence, plaintiffs must be able to prove that they have suffered some sort of damage or loss. Proving damage is usually a straightforward task which involves making a comparison between the plaintiff's position before and after the alleged negligence. However, what damage has been done if a doctor's negligence results in the conception and subsequent birth of a child? Is it ever possible to conceive of life as damage? These questions must ultimately be addressed in wrongful birth claims where parents seek compensation for the conception and/or birth of a life that would not have existed but for the doctor's negligent advice or treatment. However, they are not as easy for judges to answer as you may think. Judges have a duty to resolve such matters - not with reference to vague notions of 'common sense' or 'community interests' - but in accordance with established law. However, what if there is no statute or precedent that speaks on the matter? How should judges resolve such 'novel' issues? Can judges rely on 'common sense' or arguments about 'community interests' in these limited circumstances? The question of whether or not a child may be categorised as damage for the purpose of satisfying a claim in negligence is such an issue. In this essay I acknowledge that, in the absence of guiding legal rules and principles, judges have no choice but to resolve novel questions on grounds of policy considerations. I suggest, however, that a distinction should be made between legal and public policy and that reliance on the former, not the latter, may be used to assert that children are blessings, not injuries. While it may be morally desirable for the issue to end there, this is not the case. Legal policy has also developed the notion of reproductive autonomy in such a way that suggests the opposite may also be true. In an attempt to resolve these conflicting values, I propose the damage in wrongful birth cases is not the conception and/or birth of a child but rather a doctor's infringement on their patient's reproductive autonomy, which warrants legal recognition in the form of compensation.