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Published online by Cambridge University Press: 20 February 2015
Wrongful pregnancy cases involve unwanted pregnancies and births caused by medical negligence. In all such cases, the resulting child is unplanned and the relevant healthcare professional’s services were retained in order to prevent pregnancy and childbirth. I argue that wrongful pregnancy victims are entitled to Total Recovery, damages for both child-rearing costs and losses associated with pregnancy. Critics of Total Recovery often appeal to the Offset/Benefits Approach (OBA). In its most radical form, OBA insists that healthy children always constitute an overall benefit to their parents and that this overall benefit cancels out any claim to damages for child-rearing costs. However, OBA cannot justify blocking or reducing wrongful pregnancy victims’ claims to child-rearing damages. The conviction that children must always be treated as overall beneficial to their parents is based on a confused combination of moralistic judgment and legal fiction. More importantly, the benefits of children, whatever these may be, fall outside the scope of the tortfeasor/victim relationship; these benefits are irrelevant to the assessment of damages. My case against OBA is based on an account of corrective justice that draws on the works of Ernest Weinrib and Arthur Ripstein. I illuminate both the defects of OBA and the justice of Total Recovery by comparing wrongful pregnancy suits with Weinrib’s famous plane crash example.
Early versions of this paper were presented at Dalhousie University, University of Waterloo, University of Western Ontario, and a meeting of the CS-IVR. I thank audience members for their comments. I thank Vaughan Black for his comments on earlier versions of the paper. I also thank my research assistants, Patrick Bazinet and Charlotte Rogers, for their comments. Arthur Ripstein did not read the paper, but he encouraged me to pursue my idea of comparing wrongful pregnancy cases with Weinrib’s famous plane crash example. I would also like to thank an anonymous referee for CJLJ for their comments.
1. Ernest Weinrib, “Right and Advantage in Private Law” (1989) 10:5-6 Cardozo L Rev 1283 at 1283.
2. The prescription error case is Troppi v Scarf, 31 Mich App 240 (1971). I will not consider in this paper the idea that the different forms of negligence might make a difference to the appropriate awards. I treat negligent surgery (tubal ligation and vasectomy), negligence in provision of information, and negligence in the prescription of drugs, as comparable failures of respect for bodily integrity.
3. The terms “Offset/Benefits Approach”, “Total Recovery”, and “Limited Damages” are drawn from Kealey v Berezowski (1996), 30 OR (3d) 37 at 39-57 (Gen Div) [Kealey].
4. Christopher Essert, “Tort Law and Happiness” (2010) 36:1 Queen’s LJ 1 at 5.
5. McFarlane and Another v Tayside Health Board, [1999] UKHL 50, [2000] 2 AC 59 [McFarlane cited to AC]. The previous authority was established in Emeh v Kensington and Chelsea and Westminster Area Health Authority, [1985] QB 1012.
6. Rees v Darlington Memorial Hospital, [2003] UKHL 52, [2004] 1 AC 309. No change has occurred under the Supreme Court of the United Kingdom.
7. Cattanach v Melchior, [2003] HCA 38, 215 CLR 1 [Cattanach cited to HCA].
8. On Lax J’s definition, Total Recovery holds that “damages may be recovered for the pecuniary and non-pecuniary costs associated with the birth as well as for the economic costs of raising the child.” On my definition, the general concept of Total Recovery is open to additional non-pecuniary awards for child-rearing. On my account, specific conceptions of Total Recovery may differ on both the applicability of non-pecuniary damages and the scope of claims to compensation for economic costs. See Kealey, supra note 3 at 54.
9. Dean Stretton, “The Birth Torts: Damages for Wrongful Birth and Wrongful Life” (2005) 10:1 Deakin L Rev 319; Laura C H Hoyano, “Misconceptions About Wrongful Conception” (2002) 65:6 Mod L Rev 883.
10. This is the approach of Kirby J. See Cattanach, supra note 7 at para 148.
11. Ibid.
12. Christian Witting, “Physical Damage in Negligence” (2002) 61:1 Cambridge LJ 189. Witting questions the status of pregnancy as an injury, but, in another work, he defends the majority decision in Cattanach. See Christian Witting, “Tort Law, Policy and the High Court of Australia” (2007) 31:2 Melbourne UL Rev 569 at 583-86.
13. Kealey, supra note 3 at 69.
14. Ibid at 70-71. In Kealey, Lax J denies that child-rearing costs are a compensable loss. But she does suggest that the option of mitigation (through abortion or adoption) would have to be taken into account if such costs were compensable. For the second line of argument, see Bevilacqua v Altenkirk, 2004 BCSC 945 [Bevilacqua]. For an alternative approach to mitigation, see Beever, Allan, Rediscovering the Law of Negligence (Oxford: Hart, 2007) at 392-402.Google Scholar
15. See Lord Steyn’s opinion, McFarlane, supra note 5 at 82-83. However, at least one judge does not shy away from policy arguments. In his Cattanach dissent, Heydon J claims that broader social concerns are relevant to the assessment of wrongful pregnancy. In particular, he expresses the concern that unplanned children could be harmed by the revelation that their parents sought damages for child-rearing costs. He also disparages the motivations of parents who seek such damage awards. See Cattanach, supra note 7 at paras 390-403. Peter Cane argues that decisions about wrongful pregnancy require appeals to broader moral concerns, but this position reflects his more general pessimism about corrective justice approaches to tort law. See Peter Cane, “The Doctor, the Stork and the Court: a modern morality play” (2004) 120 Law Q Rev 23; Peter Cane, “Another Failed Sterilisation” (2004) 120 Law Q Rev 89.
16. Donoghue v Stevenson, [1932] UKHL 100, [1932] AC 562; Ernest Weinrib, “The Disintegration of Duty” (2006) 31:2 Advocates’ Q 212 at 212-13.
17. Ibid at 215.
18. Arthur Ripstein, “As If It Had Never Happened” (2007) 48:5 Wm & Mary L Rev 1957 at 1964.
19. This approach is adopted by Lord Millett, though he also treats this approach as cancelling out claims to damages for pregnancy-related losses. Lord Millett, however, recommends a modest conventional award that recognizes victims’ loss of autonomy. See McFarlane, supra note 5 at 113-15.
20. It is difficult to give any other meaning to each Law Lord’s explicit rejection of arguments based on “social policy” or “public policy”. See McFarlane, supra note 5 at 76 (Lord Slynn), 83 (Lord Steyn), 95 (Lord Hope), 100 (Lord Clyde) and 108 (Lord Millett). For a detailed breakdown of the individual opinions, see Hoyano, supra note 9. Hoyano cites the same pages in her discussion of the McFarlane rejection of policy arguments. See Hoyano, supra note 9 at 889, n 53.
21. McFarlane, supra note 5 at 113.
22. Ibid at 113-14.
23. As Shannon Dea reminds me, parents may love their children unconditionally without regarding them as a benefit. Here I am oversimplifying the appropriate attitudes towards children in order to show that, even with the generous account of parental affection noted above, the case against Total Recovery still fails.
24. Priaulx, Nicolette, The Harm Paradox: Tort Law and the Unwanted Child in an Era of Choice (New York: Routledge-Cavendish, 2007) at 57–58.Google Scholar
25. Bevilacqua, supra note 14 at paras 132-136.
26. Cattanach, supra note 7 at para 90.
27. McFarlane, supra note 5 at 103-06.
28. Bevilacqua, supra note 14 at paras 110-111. Groberman J uses the term “wrongful birth” instead of “wrongful pregnancy” for the class of cases in question. He explains his choice of terminology in an endnote. See Bevilacqua, supra note 14 at n 1.
29. For a survey of the relevant literature, see Essert, supra note 4.
30. The example is based on one used by Guido Calabresi. Calabresi uses the example of a famous violinist in his illustration of the thin skull rule. I am unsure whether anyone else has used a similar example to parallel the coal miner example. See Calabresi, Guido, Ideals, Beliefs, Attitudes, and the Law (New York: Syracuse University Press, 1985) at 24–25.Google Scholar
31. By contrast, I see no lack of virtue in wrongful pregnancy victims’ claims. As I argue in Section 2, children are not always a straightforward benefit. Likewise, unplanned children’s material interests may be well-served by Total Recovery.
32. A critic of this assertion might seek to draw a firm distinction between damage to person and damage to property here. On this view, a tortfeasor would owe his victim compensation for damaged property even if the victim’s overall well-being was improved as a result of the property damage. However, the critic might also argue that damage to the victim’s person (say, broken legs or damaged lungs) cannot be neatly sorted out from her overall situation. If true, this claim would undermine the application of the separate interests rule in damage to person cases. The critic may also suggest a response to this line of argument. Both property and physical capacities are the means through which persons act and pursue goals; persons are owed compensation for wrongful damage to their means, regardless of whether their overall well-being is improved. My previous cases (the coal miner and the prodigy) illustrate how a loss of means might, along with appropriate compensation, improve a victim’s overall well-being. Smith v. Jones, is simply another dramatic illustration of this possibility. As I argue in the following sections of the paper, focusing on victims’ claims to their means explains both the plausibility and scope of the separate interests rule.
33. Cattanach, supra note 7 at para 90.
34. Ibid at paras 174-175.
35. Ripstein, supra note 18 at 1967.
36. Ibid at 1984.
37. Calabresi, supra note 30 at 81; Ripstein, supra note 18 at 1984, n 58. Ripstein notes this claim about the “real” purpose of hedonic damages. Calabresi describes it as a well-known truth.
38. McFarlane, supra note 5 at 114.
39. Weinrib, supra note 1; Ripstein, Arthur, Equality Responsibility, and the Law (Cambridge: Cambridge University Press, 1999) at 57.Google Scholar
40. Arthur Ripstein, “Equality, Luck, and Responsibility” (1994) 23:1 Phil & Pub Aff 3 at 20-21.
41. McFarlane, supra note 5 at 114.
42. Taylor v Laird, (1856), 25 LJ Ex 329 at para 332. I thank the CJLJ reviewer for reminding me of this comment from Taylor.
43. McFarlane, supra note 5 at 113-14.
44. In one way, such parallel cases are utterly pervasive. As Derek Parfit points out, any change in the timing of our procreative decisions affects the identity of the children that are subsequently born. Thus, anyone who has had any effects on timing (not just partners) in A’s sex life might stake a claim to having caused the birth of A’s particular child. It would be far more difficult, if not impossible, to prove that, had B not intervened in A’s life in a particular way, A would never have procreated at all. However, even if such complex causal chains could be traced, it seems obvious that A owes no enforceable debt to B, just because some of B’s actions are a “but for” condition of A’s becoming a parent. Perhaps A should be grateful to B, just as the victim should be grateful in plane crash cases, but that is all. See Parfit, Derek, Reasons and Persons (New York: Oxford University Press, 1986) at ch 16.Google Scholar
45. Marciniak v Lundborg, 153 Wis 2d 59 (Sup Ct 1990) at 73-74 [Marciniak]. Partially quoted by Kirby J, Cattanach, supra note 7 at para 174.
46. But perhaps there are specific relationships in which one takes on direct responsibility for another’s happiness.
47. Essert, supra note 4 at 2.
48. Ibid at 20.
49. Ibid at 29-30.