Damages for Wrongful Life in Australia
The issue of abortion is inherently loaded with practical, legal, ethical and ideological debates. These debates touch on all manner of question relating to the appropriateness, permissibility and moral acceptance of performing an abortion or undergoing an abortion. One such question relates to the health of the fetus and denotes, for many supporters of abortion rights, that where the health or well-being of the unborn fetus is known to be compromised, it might be appropriate to consider the procedure. This is viewed by its advocates as an appropriate measure for preventing the birth and consequent undue suffering of a child which likely to be severely ill or impacted by serious health defects.
Our discussion takes this perspective yet another step forward by acknowledging this not simply as a right but as a prospect about which the pregnant woman should be informed. Absent of being informed of prenatal severe illness or possible health defect, the patient is denied an opportunity to consider the abortion procedure which is her right in many developed nations. Among these, Australia holds that it is the right of individual states there within to define the legal parameters surrounding abortion. Therefore, most states in Australia do have conditions by which abortion is legal. These conditions are often highlighted by imperatives relating to the health and well-being of the mother, denoting that where these may be threatened, it is considered acceptable to seek the abortion procedure. In some regions of Australia such as South Australia, it is dictated as acceptable to seek an abortion in the event that the child would be born with serious health deficiencies or with severe mental or physical handicaps. (Caldwell, 1)
However, the discussion here concerns yet a more stringent protection of abortion rights by bringing into consideration the tort laws relating to what is called wrongful life or wrongful birth actions. Here, the latter condition noted above related to the health of the unborn child is central and calls for more aggressive tort preconditions such that the rights of the mother to perform an abortion are adequately protected. It is thus that the discussion here proceeds with the argument that financial damages should be a precedent for legal treatment in cases where wrongful birth does occur without the pregnant subject first being made aware of the risks.
This view is supported by certain legal protections against unlawful abortion, suggesting that the establishment of such a precedent would not significantly or observably increase the danger that expecting mothers might seek or have abortion performed without medical justification. According to the legal status of abortion in Australia, the procedure remains criminalized throughout. However, the federal government lacks the right to veto abortion laws in individual states, meaning that many regions of Australia have adopted their own ways of approaching the thorny legal issue. Our research points to South Australia as a demonstration of the will to protect abortion procedures in cases where the unborn fetus is likely to suffer physically, mentally or healthwise. This is underscored in the report by Caldwell (2004) which finds that “in South Australia abortion is a criminal offence except where the continuation of pregnancy involves greater risk to the woman’s life or of injury to physical or mental health than if the pregnancy were terminated, or if there is a substantial risk that, if the pregnancy were not terminated, the child would suffer from such physical or mental abnormalities as to be seriously handicapped.” (p. 1)
The attendant justification for performing an abortion in this instance denotes the need to better define and ensure protection for those conditions in which the health and well-being of the fetus are likely to be compromised. This calls for the establishment of legal precedent by which physicians are imposed upon to ensure that women are made aware of this right and further protected against the oversight of prenatal physicians whether inadvertent or otherwise. Indeed, the controversial nature of the abortion issue on the whole denotes that physicians wishing to prevent the decision toward lawful abortion might be inclined to withhold pertinent information from patients if not otherwise inclined by law to ensure that all of such information is made wholly available to the subject.
To date, very few courts have been willing to consider wrongful life or wrongful birth lawsuits. This may be seen as an extension of the views centering on the controversy relating to abortion. But with the proper designation of conditions by which wrongful birth may be identified, it is possible and desirable to create a legal format for ensuring that the proper steps are taken. As the research by Blake (2001) shows, there is some precedent for the awarding of damages in instances where parents are not properly informed of the medical realities of carrying an unhealthy child to term. However, this precedent is decidedly impacted by certain ideological views. Namely, “in these cases the approach by the courts has been to either award damages for the cost of raising the child (usually until 18 years) (Melchior v Cattanach (Qld SC), or to award damages for the pain and suffering associated with childbirth but not for the costs of maintaining the child until adulthood. (McFarlane v Tayside Health Board). In neither case was the court inclined to award damages for the fact that the child has been born: ‘A child is a blessing and cannot be characterised as ‘harm.'” (Blake, p. 1)
This final judicial explanation for the decision, though not used to this end in the cases cited, may be viewed as a philosophical disposition rather than a legal one. Moreover, it presents a clear danger to the rights discussed here by making an aggressive ideological argument against one of the preeminent justifications for abortion. The view that “a child is a blessing” appears to carry many of the religious and moralistic overtones that impede upon more effective discussion of the issue. Indeed, this is the argument posited by Petersen (1997), who contends that “access to safe and legal abortion is integral to the action and wrongful birth claims in the United Kingdom have been facilitated by the Abortion Act 1967 (as amended). The recent Australian case CES v Superclinics (1995) 38 NSWLR 47 shows how judicial confusion about the legality of abortion can result in judges condoning medical negligence.” (Petersen, 319)
In this regard, we can see that the issue of awarding damages in cases where wrongful birth or wrongful life can be proven is not simply a matter of proper tort protections. More than that, debates over this issue seem to cut right to the core of Australia’s inconsistent and poorly defined approach to abortion rights. The fact that this remains criminalized on a federal level, even as Australia’s various states have developed their own respective legal protections for the procedure, denotes that the Australian government’s policies are out of step with the position taken by the publics of various different regions. Additionally, we are inclined here to argue that a failure on the part of the federal government to establish consistency or accountability on this issue has given a problematic degree of freedom to doctors operating in any state to simply overlook state laws in favor of federal conditions which might align more directly with their personal beliefs. As this applies to the issue of wrongful birth, it is clear that the physician holds the right, at present, to deny the option of abortion to a woman carrying a child with severe birth defects or health concerns.
As Petersen goes on to note, “the Superclinics case also suggests that doctors are not required to provide pregnant women with the same standard of care as other patients. These developments show that law can become incoherent and health professionals can act negligently with impunity when reproductive choice does not have a secure legal foundation.” (Petersen, 319) Once again, the degree to which the Australian government has determined not to execute a more permeating and consistent abortion policy has contributed to a scattershot spectrum of protections for the rights of women which may or may not be adhered to during treatment.
As the article by Stretton (2005) points out, judicial precedent has come to support this view, albeit by a narrow majority. According to Stretton, “in July 2003, the High Court of Australia held by a 4:3 majority that where an unplanned child is born through medical negligence, the parents may sue the negligent doctor to recover the costs of raising the child to maturity.” (p. 1) The decision would ignite great controversy but would not result in any sweeping Australian laws supporting its imperatives.
To the contrary, the need to create this protection for the rights of pregnant women remains a hostage to the stall pattern which Australia’s government has found politically expedient with respect to the extremely challenging issue of abortion and all of its peripheral questions. This is underscored by the continually hazy reality of legal precedent in this area. The text by Neville & Lokuge (2006) reports to the evolving status of this question since the rash of birth defects caused in the 1970s by the Thalidomide drug. These events would give way to what Neville & Lokuge call a ‘novel’ legal question. Its novelty, the article suggests, may be the primary reason that courts of have decided with inconsistency how best to address ‘wrongful life’ and ‘wrongful birth’ cases. Accordingly, the article reports that “courts have endeavoured to be careful in recognising and awarding damages in novel areas of law, such as “wrongful birth” and “wrongful life.” The High Court of Australia has recently given judgment in both kinds of action: in 2003 allowing a claim for wrongful birth (Cattanach v Melchior), but in May 2006 disallowing two separate claims for wrongful life (Harriton v Stephens and Waller v James/Waller v Hoolahan).” (Neville & Lokuge, 559)
The research conducted here finds that this inconsistency is a product of core values held by many lawmakers and members of the public which overlap beliefs concerning abortion and the legal slippery slope created by the establishment of allowance. However, a separation from these considerations and a reflection on the issue of awarding damages in wrongful life cases shows such a response to be more effectively consistent with the implications of Australian tort law. This is to say, as supported in the text by Pollard (2004), that the legal precedent in matters of medical malpractice makes it assumptive that damages would be awarded in wrongful life instances. Court decisions to the contrary should be viewed as having made special conditions by which to formulate a denial of the plaintiff’s rights. Pollard states on this point that “Wrongful life cases also depart from negligence jurisprudence by utilizing a unique damages analysis that finds no precedent in prior negligence cases and results in no remedy, despite enormous medical and other expenses and often severe pain, suffering, or other injury. In addition, wrongful life jurisprudence departs from the policy-based trend to create alternative theories of recovery where a strict adherence to common law doctrine would unjustly result in no remedy to innocent victims.” (p. 1)
In this regard, we can see that it is of necessity to critically distinguish wrongful life from legal discussions on abortion rights and instead evaluate this as a common tort law issue. This approach should allow for a more realistic and ethically balanced perception of the rights, financial costs, emotional suffering and lost opportunity for practical preparation that may result from the negligence of physicians failing to identify critical birth defects.
As a positive precedent for how such cases should be handled in order to maintain consistency with Australian common law on the subject of medical malpractice and related tort awards, we consider such cases as Veivers v Connolly (1995) 2 Qd R. 326, in which “the mother of a severely handicapped child, born as a consequence of the defendant’s negligence, recovered costs associated with past and future care of the child, covering a period of 30 years.” (Case Notes, 1)
This case would demonstrate the understanding that the implications of the terminology ‘wrongful life’ are not intended as a segue into validating abortion but are instead related to the accountability of the prenatal physician to apply proper treatment and to inform the expectant mother of the realities of her condition, the status of her pregnancy and the options available to her in the event of impending suffering for the unborn child.
Blake, R. (2002). Abortions and Actions for Wrongful Life. University of the South Pacific.
Caldwell, J. (2004). The Legal Status of Abortion in Australia. Australian Reproductive Health Alliance.
Case Notes. (2002). Edwards v Blomeley; Harriton v Stephens; Waller v James: Wrongful Life Actions in Australia. Melbourne University Law Review, 37.
Neville, W.J. & Lokuge, B. (2006). Wrongful life claims: dignity, disability and “a line in the sand.” Medicine and the Law, 185(10), 558-560.
Petersen, K. (1997). Medical Negligence and Wrongful Birth Actions: Australian Developments. Journal of Medical Ethics, 23, 319-322.
Pollard, D.A. (2004). Wrongful Analysis in Wrongful Life Jurisprudence. Alabama Law Review, 327.
Stretton, D. (2005). The Birth Torts: Damages for Wrongful Birth. Deakins Law Review, 10(319).
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