Wrongful life and birth

Wrongful life is the theory behind bringing a court case on the theory that a life was only brought into the world through negligence, and the claim that a duty of care is owed to the child as a result.

Wrongful Birth is the theory where a mother has been impregnated either as a result of the failing of another, or a pregnancy would not have contuned if not for the negligence of another.

Wrongful life is not regcognised as an actionable delict, bur wrongful birth can be.

Wrongful life
In Mckay v Essex Area Health Authority a mother sued for the hospitals failure to identify rubella caused injuries on her child in utero, on the basis that she would not have proceeded to birth with this knowledge. The claim was rejected, in part, as a child has no "right" to be born, so the hospital had no duty of care towards the child. There could however be a claim for the Mother to bring up a disabled child, but any damages limited to the difference in costs.

Wrongful Birth
The ability for the mother to sue was brought into scots law in McLelland v Greater Glasgow Health Board,  where it was determined that not allowing parents the ability to terminate a child that was likely to be born deformed. The result being that damages could be awarded for the pain and suffering, or other losses from the birth and any additional costs from the handicapped child, the main costs of bringing up the child were not retrevable.

Wrongful Conception
The same principle reappears when a woman is impregnated only due to the failure of controception. In McFarlane v Tayside Health Board a healthy child was born due to a sexual act where the father had believed himself to be surgically sterilised. Again, pain and suffering from pregnancy could be claimed, but not the costs in raising the child. Rees v Darlington Memorial Hospital followed the same route, but also included damages for loss of the mothers ability to plan her family.