The following PI & Clinical Negligence practice note Produced in partnership with Rachel Galloway of Kings Chambers provides comprehensive and up to date legal information covering:
The law relating to wrongful conception, pregnancy and birth can be conveniently broken down into four areas:
wrongful conception following a negligently performed sterilisation operation (male or female) resulting in the birth of a healthy child
wrongful conception following a negligently performed sterilisation operation (male or female) resulting in the birth of a disabled child
a disabled woman’s wrongful conception with a healthy child
wrongful birth where the claimant mother would have terminated the pregnancy had she been made aware that the child was or was likely to be disabled
An action on behalf of a child (whether disabled or not) alleging that their birth (as opposed to any injuries) arose due to negligence (ie a claim for wrongful life) is not permitted. It appears that there is a statutory exception to this rule under section 1A of the Congenital Disabilities (Civil Liability) Act 1976, which permits a claim by a child where there has been negligent selection of an embryo for implantation or of the gametes. In reality, if a different embryo or different gametes had been selected then the particular child making the claim would not have existed.
Claims for wrongful conception or birth are often brought by the mother. There is some debate as to whether such claims constitute personal injury claims or claims for pure economic loss and the law remains unclear.
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