Wrongful birth claims relate to the birth of a child as a consequence of medical negligence. There has been general acceptance by courts in various jurisdictions that costs relating to the pregnancy and birth may be recovered. However the more contentious issue is whether there is liability for the costs of rearing such a child. The English courts have held there is no such liability with respect to a healthy child, while in Australia, the Queensland Court of Appeal has taken the opposite view2. In New Zealand the issue has yet to be decided. The Accident Compensation scheme has limited the development of the law relating to personal injury in general, but the High Court has found that the scheme does not prevent claims for wrongful birth. It is argued that the New Zealand courts should follow the Australian decisions, as the English approach is based on the views of ordinary people on this moral question as perceived by judges. This requires the individual judge’s sense of the moral answer to a question to prevail, albeit in light of the judge’s view of the opinions of ordinary people. It is argued that this is a subjective approach in that, in such a complex and emotionally difficult area of the law, there is unlikely to be uniformity of opinion among the public, or even among judges. As such, this is arguably a matter better resolved by legislation than by the courts.
Subsequently published as Cordelia Thomas, ‘Claims for wrongful pregnancy and damages for the upbringing of the child’ (2003) 26 University of New South Wales Law Journal 125. With permission of the UNSWLJ