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RECONSIDERING “WRONGFUL LIFE” IN ENGLAND AFTER THIRTY YEARS: LEGISLATIVE MISTAKES AND UNJUSTIFIABLE ANOMALIES

Published online by Cambridge University Press:  08 March 2013

Rosamund Scott
Rosamund Scott*
Affiliation:
Centre of Medical Law and Ethics, Dickson Poon School of Law, King's College London.
*
Address for correspondence: The Dickson Poon School School of Law, KCL, Strand, London, WC2R 2LS. Email: [email protected].
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Abstract

Under English law a child born disabled, for instance by Tay Sachs disease, as a result of negligent embryo selection by preimplantation genetic diagnosis (‘PGD’), can sue the relevant health professionals by means of a 1990 amendment to the Congenital Disabilities (Civil Liability) (‘CD’) Act 1976. By contrast, a second child conceived outside the in vitro fertilisation (‘IVF’) clinic, whose Tay Sachs is not detected in utero by means of prenatal diagnosis, can have no claim against the relevant health professionals due to the decision in McKay and Another v Essex Area Health Authority, which held that a child can have no claim for so-called “wrongful life”. This paper argues that this difference is anomalous and inequitable. It highlights the inadvertent way in which the legislative exception was crafted and shows that there are no relevant differences between the selection practices of PGD and PND that would in any event justify such different treatment. It critiques the English common law position on wrongful life by analysing the ethical and legal foundations of such a claim, arguing that the action should be permitted on the basis of a certain degree of severity, namely where a future child is likely to think that his or her life is not worth living. The analysis makes particular reference to developments since McKay in the law relating to the selective non-treatment of neonates, selective abortion, wrongful birth, and the action for wrongful life itself, as well as to the legal position of pregnant women in relation to the fetus, and the critique by people with disabilities of the practices of PGD and PND. The paper argues that McKay and those parts of the CD Act that purport to deny a claim for wrongful life to children born outside the IVF context should be revisited when the opportunity arises. The duty that health professionals already owe prospective parents to advise of a condition in a developing fetus that would give rise to serious impairments in the future child (which sounds in an action for so-called “wrongful birth”) should be owed at the same time to the future child, realised by advice to the pregnant woman, where a child is likely to be born with a condition that is so severe that any goods in life are outweighed by the burdens.

Keywords

wrongful lifeCongenital Disabilities (Civil Liability) Act 1976wrongful birthpreimplantation genetic diagnosisprenatal diagnosisselective non-treatment of neonatesselective abortionmaternal-fetal relationship
Type
Articles
Information
The Cambridge Law Journal , Volume 72 , Issue 1 , March 2013 , pp. 115 - 154
Copyright
Copyright © Cambridge Law Journal and Contributors 2013

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References

1 [1982] 1 Q.B. 1166, discussed below.

2 Relevant parts of the Parliamentary debate are discussed below.

3 PGD involves removing a single cell from a day 3 embryo and testing it for a serious genetic condition. Those that have tested positive for a serious genetic condition are sometimes termed ‘affected embryos’. For further discussion, see e.g. , R., Williams, C., Ehrich, K. and Farsides, B., “The Appropriate Extent of Preimplantation Genetic Diagnosis: Health Professionals' Views on the Requirement for a ‘Significant Risk of a Serious Genetic Condition’” (2007) 15 Med. Law Rev. 320–56CrossRefGoogle Scholar. The current legal criteria for PGD are noted below.

4 See respectively Jepson v The Chief Constable of West Mercia Police Constabulary [2003] EWHC 3318 and e.g. Parkinson v St James and Seacroft University Hospital N.H.S. Trust [2002] Q.B. 266, both of which are discussed below.

5 Cass. Ass. Plén., 17 November 2000, Perruche, J.C.P. 2000.II.10438, rapp. P. Sargos, which concerned the birth of a rubella-affected child, discussed below. The mother, when pregnant, had shown signs of rubella and sought testing. The laboratory failed to conduct the necessary tests and her doctor negligently advised that there was no risk to the fetus. The Cour de Cassation awarded damages to the child in a wrongful life action. Morris, A. and Saintier, S., “To Be or Not to Be: Is that the Question? Wrongful Life and Misconceptions” (2003) 11 Med. Law Rev. 167–294, 175CrossRefGoogle ScholarPubMed. The boy's serious disabilities “included severe developmental delay, deafness, partial blindness, and heart problems”. Lewis, P., “The Necessary Implications of Wrongful Life Claims” (2005) 12 E.J.H.L. 135–153, p. 135Google Scholar. See also S. Taylor, “The Development of Medical Liability and Accident Compensation in France”, in E. Hondius (ed.), The Development of Medical Liability (Cambridge 2010) 71, 105–106. Taylor notes that the decision in Perruche was seen as “the most extreme manifestation of a developing compensation culture” (p. 92). Changes to the compensation system were introduced by the Law of 4 March 2002, ibid. p. 93.The parts of relevance to the wrongful life action are discussed below.

6 Leids Unversitair Medisch Centrum v Kelly Molenaar, no. C03/206, RvdW 2005, 42 (18 March, 2005), discussed below. The case concerned an obstetrician's failure to test the fetus in a pregnancy which resulted in the birth of a severely disabled child, despite the fact that the mother had advised him of a hereditary genetic condition in the father's family. Liability was admitted on the defendant's part. The Supreme Court, the Hoge Raad, held that the mother, father and the child were each entitled to compensation. E. Hondius, “The Development of Medical Liability in the Netherlands”, in E. Hondius (ed.), The Development of Medical Liability, pp. 147–148. In 2003, it was reported that the child “cannot walk, talk or properly recognise her parents; has deformed feet; is believed to be in constant pain; and has had several heart operations. By the age of 2½ she had been admitted to hospital nine times due to ‘inconsolable crying’”. Sheldon, T., “Court Awards Damages to Disabled Child for Having Been Born” (2003) 326 B.M.J. 784CrossRefGoogle ScholarPubMed, p. 784. J.K. Mason and G. Laurie, Law and Medical Ethics (Oxford 2010) 8th edn, para.10.72, note that the Hoge Raad awarded damages for “material and emotional damage” to both of the parents and the child.

7 (2006) 226 C.L.R. 52, discussed below. The case concerned the failure of a doctor to diagnose rubella in a pregnant woman and to advise her of the subsequent risks to the fetus. A child was later born who suffered from severe disabilities. As described by Kirby J., dissenting, at [20], these “include blindness, deafness, mental retardation and spasticity”. He noted further that “she will require constant supervision and care for the rest of her life”. The leading judgment was given by Crennan J. Gleeson C.J., Gummow and Heydon JJ. agreed. The remaining judges were Hayne and Callinan JJ. and Kirby J., dissenting. All apart from Kirby J. (dissenting) and Hayne J. (who did not decide the point) held that the doctor did not owe the child a duty of care. Crennan, Gummow, Hayne, Callinan JJ. and Gleeson C. J., held that damage was an essential ingredient of the tort of negligence and that it was impossible to make the comparison necessary to determine damage in this case.

8 As confirmed by a Westlaw search, 11 January 2013.

9 E.g. as in Rand v East Dorset Health Authority [2000] 56 B.M.L.R. 39, which concerned the birth of a child with Down's syndrome.

10 The wording is quoted in the final section of this article.

11 Section 1(3).

12 Section 1A(1)(a).

13 Section 1A(1)(b).

14 Section 1A(1)(c).

15 Section 1A(3).

16 HFEA, Code of Practice (8th edn, 2009, updated 2011), in force Oct 2011, T86 and T87, “Interpretation of Mandatory Requirements”, Box 10C.

17 See the discussion below.

18 Clause 11, Human Fertilisation and Embryology Bill 1989.

19 HC Deb. vol. 174, cols. 992–993 (20 June 1990).

20 Ibid. col. 994.

21 Ibid. cols. 995–996, my emphasis.

22 Ibid. col. 999.

23 Ibid. col. 1000, my emphasis.

24 Ibid.

25 Ibid. cols. 1000–1001.

26 The relevant legal criteria for PGD are detailed in Schedule 2 of the HFE Act 1990, as amended by the HFE Act 2008.

27 HC Deb. vol. 174, col. 1001 (20 June 1990), my emphasis.

28 Ibid. col. 1001.

29 Ibid. col. 1002, my emphases.

30 Ibid. col. 993.

31 According to the Human Fertilisation and Embryology Authority (“HFEA”): “45,264 women had IVF treatment in 2010. These women had 57,652 cycles of treatment in 2010, an increase of 5.9% on the previous year… There were 12,714 babies born in 2009 as a result of IVF treatment using womens' [sic] own fresh eggs.” Latest UK IVF figures – 2009 and 2010, http://www.hfea.gov.uk/ivf-figures-2006.html. Further: “In 2009, 232 patients underwent 288 PGD treatment cycles. … In 2009 there were 86 live births resulting in 100 babies.” Latest UK pre-implantation genetic diagnosis (PGD) figures – 2009, http://www.hfea.gov.uk/1271.html.

32 This would be on the basis of the criteria noted in above n 26.

33 A couple must consent in writing to the use of their embryos (and gametes) in their treatment, HFE Act 1990 (as amended), Sched. 3 paras 1(1) and 2(1). The validity of consent is assessed by the common law requirements of capacity, information as to nature and purpose and voluntariness. Regarding each of these elements, see respectively Re MB [1997] 2 F.L.R. 426, Chatterton v Gerson [1981] 1 All E.R. 257, Re T (Adult: Refusal of Treatment) [1992] 4 All E.R. 649.

34 The legal prohibition against preferring an affected PGD embryo was the subject of considerable debate and some criticism, for instance by members of the deaf community, at the time of the passing of the HFE Act 2008.

35 E.g. Rand v East Dorset Health Authority [2000] 56 B.M.L.R. 39.

36 The relevant part of section 1(1) of the Abortion Act 1967 as amended by the HFE Act 1990 reads: “Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith … (d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped”.

37 Damages are currently recognised in respect of the possible impact on parents of raising a disabled child (beyond, that is, the financial costs of so doing) necessarily described, for the purposes of the law of negligence, as “physical consequences giving rise to … loss of amenity” (Newman J. in Rand v East Dorset Health Authority, [2000] 56 B.M.L.R. 39, at p. 114) and further supported with reference to the protection due to autonomy interests (currently by means of a “conventional award”) in surrounding case law. This strand originated in the judgment of Lord Millet in McFarlane v Tayside Health Board [2000] 2 AC 59 (which held that the birth of a healthy child following a negligent sterilisation amounts to pure economic loss in relation to which no duty of care is owed) and is discussed below. It was then taken up by the majority of the House of Lords in Rees v Darlington Memorial N.H.S. Trust [2004] 1 AC 309 (which concerned whether a disabled mother could recover damages (for the extra costs of child-raising associated with her own disability) for the birth of a healthy child following a negligently performed sterilisation), discussed below. See further e.g. R. Scott, Choosing Between Possible Lives: Law and Ethics of Prenatal and Preimplantation Genetic Diagnosis (Oxford 2007), ch. 2.

38 Para 11 of the Statement of Claim, cited by Stephenson L.J. [1982] 1 Q.B. 1166, at p. 1172G.

39 RSC Ord. 18, r. 19(1)(a).

40 [1982] 1 Q.B. 1166, Stephenson, Ackner and Griffiths L.JJ.

41 Ibid. Stephenson L.J. at p. 1175D.

42 Ibid.

43 Ibid. at pp. 1178 G, 1179A-E.

44 Ibid. at p. 1181A.

45 Ibid. Stephenson L.J. at p. 1180H.

46 Ibid. at p. 1188B-C. A concern with the sanctity of life has also been a major theme in relevant US cases both before and after the US Supreme Court's decision in Roe v Wade, 35 L.Ed.2d 147 (1973) (which established a pregnant woman's right to abort her fetus for any reason until the end of the second trimester as an aspect of her right to privacy). See e.g. Berman v Allan, 404 A.2d 8 (1979) (which concerned a failure to advise a 38-year-old woman who later gave birth to a child with Down's syndrome of the possibility of amniocentesis), in which Pashman J. observes, at p. 12: “One of the most deeply held beliefs of our society is that life whether experienced with or without a major physical handicap is more precious than non-life.”

47 See also e.g. Shapira, A., “‘Wrongful Life’ Lawsuits for Faulty Genetic Counselling: Should the Impaired Newborn be Entitled to Sue?” (1998) 24 J.M.E. 369–375Google Scholar, p. 373. However, Shapira is concerned that judges will not be able to draw the relevant lines.

48 Cass. Ass. Plén., 17 November 2000, Perruche, J.C.P. 2000. II.10438. A. Morris and S. Saintier, note 5 above, p. 178.

49 (2006) 226 C.L.R. 52, Kirby J. holds that the “case falls within the duty owed by persons such as the respondent to take reasonable care to prevent pre-natal injuries to a person such as the appellant” (at [66] Kirby J. also emphasised that liability encourages “proper standards of care” (at [101]), an argument rejected by Hayne J. (against the claim) on the mistaken ground that not all mothers would in any event abort (at [180]–[181]). See also Grey, A., “Harriton v Stephens: Life, Logic and Legal Fictions” [2006] 28 Sydney Law Rev. 544, 559–560Google Scholar.

50 (2006) 226 C.L.R. 52. Kirby J. refers to a patient seeking a doctor's “advice and care” (at [72], my emphasis).

51 [1982] 1 Q.B. 1166, Griffiths L.J. at p. 1181E.

52 See e.g. the majority judgment of Crennan J. in Harriton (2006) 226 C.L.R. 52, compared with the dissenting judgment of Kirby J.

53 [1982] 1 Q.B. 1166, Stephenson L.J. at p. 1181C.

54 Ibid. Stephenson L.J. at p. 1181E, my emphasis.

55 Ibid. Ackner L.J. at p. 1189D, my emphasis.

56 Ibid. Griffiths L.J. at p. 1192F.

57 (2006) 226 C.L.R. 52, per Crennan J. at [252].

58 Ibid. See e.g. Crennan J.'s review of US and Canadian law at [232]–[235].

59 On this point see Teff, H., “The Action for ‘Wrongful Life’ in England and the United States” (1986) 34 I.C.L.Q. 423–441, p. 431Google Scholar. Teff (p. 433) suggests this is particularly apparent given the accompanying judicial preference for life. See also A. Capron, “Tort Liability in Genetic Counseling” (1979) 79 Colum. L. Rev. 618, 650, who suggests that in this way courts are “not announcing purely rational conclusions derived from legal principles but are instead proclaiming their personal views on certain value-laden ‘facts’”. See especially Gleitman v Cosgrove 49 N.J. 22 (which rejected a claim for wrongful life by a child affected by rubella).

60 [1982] 1 Q.B. 1166, Griffiths L.J. at p. 1193A.

61 D. Heyd, Genethics: Moral Issues in the Creation of People (Berkeley 1992), 37.

62 For a similar emphasis on a certain requisite degree of severity for the legal claim, see e.g. H. Teff, note 59 above, p. 437 and pp. 440-441 on the likely rarity of such cases. On severity in relation to the ethical claim, see e.g. S. Wilkinson, Choosing Tomorrow's Children: the Ethics of Selective Reproduction (Oxford 2010), ch. 3, section 3.2; Savulescu, J., “Is there a ‘Right not to be Born?’ Reproductive Decision-making, Options and the Right to Information” (2002) 28 J.M.E. 65Google Scholar.

63 J. Glover, Choosing Children: Genes, Disability and Design (Oxford 2006), 60.

64 D. Parfit, Reasons and Persons (Oxford 1984), ch. 16.

65 See e.g. S. Wilkinson, note 62 above, ch. 3, section 3.2.

66 A. Buchanan, D. Brock, N. Daniels and D. Wikler, From Chance to Choice: Genetics and Justice (Cambridge 2000), 236.

67 Ibid. p. 236.

68 Ibid.

69 Steinbock, B., Life Before Birth (New York 1992), 56Google Scholar.

70 For a compatible analysis, see e.g. S. Wilkinson, note 62 above, ch. 3, section 3.2.

71 For descriptions, see e.g. National Tay-Sachs and Allied Diseases Association, Inc. http://www.ntsad.org/pages/t-sachs.htm; National Institute of Neurological Disorders and Stroke, http://www.ninds.nih.gov/disorders/lesch_nyhan/lesch_nyhan.htm; N.H.S. Direct Health Encyclopaedia, “Epidermolysis bullosa”, http://www.nhs.direct.nhs.uk/articles/article.aspx?articleId=560&PrintPage=1. In R. Scott et al, note 3 above, we noted that a PGD scientist whom we interviewed observed that one clinician had given a talk in which he/she had said that the only condition in relation to which he/she could recall that people had said they would prefer not to be born was Epidermolysis bullosa. People with this condition are, of course, in fact able to reflect on their lives. On the possible effects of rubella, see Kirby, J in Harriton v Stephens (2006) 226 C.L.R. 52Google Scholar at [20] where he refers to “catastrophic disabilities” and at [105] where he speaks of “unremitting suffering”.

72 [1982] 1 Q.B. 1166, Stephenson L.J. at p. 1182E. Croke (A Minor) v Wiseman [1982] 1 W.L.R. 71 concerned a trial for damages only, relating to admitted negligence on the part of a hospital in which the claimant, when 21 months old, suffered a cardio-respiratory arrest while being examined. This led him to suffer from severe spastic quadriplegia and he was going to need constant care and attention for the rest of his substantially diminished expectation of life.

73 [1982] 1 Q.B. 1166, Stephenson L.J. at p. 1182E.

74 (1980) 165 Cal. Rptr. 477.

75 P. Cane, “Injuries to Unborn Children” (1977) 51 Australian Law Journal 704, 719. See also H. Teff, note 59 above, p. 438.

76 (2006) 226 C.L.R. 52 at [59].

77 Ibid. at [105].

78 Ibid. Kirby J. at [118], [120] and [39]. (See also Mason P., dissenting, in the Supreme Court of New South Wales (Court of Appeal) (2004) 59 N.S.W.L.R. 694.)

79 Ibid. Kirby J. at [6], [155].

80 Rapport de M. Pierre Sargos, http://www.courdecassation.fr/agenda/arrets/arrets/99-13701arr.htm, at [49], as cited in P. Lewis, note 5 above, p. 137.

81 As expressed by A. Morris and S. Saintier, note 5 above, p. 185 (who cite M. Fabre-Magnan “Avortement et responsabilité médicale”, R.T.D.C. 2001, 307).

82 Ibid. p. 175.

83 Nys, H.F.L. and Dute, J.C.J., “A Wrongful Existence in the Netherlands” (2004) 30 J.M.E. 393Google ScholarPubMed; see also J.K. Mason and G. Laurie, note 6 above, para. 10.70, on the Court of Appeal's position that the child's suffering was a direct result of the negligence.

84 E. Hondius, note 6 above, p. 154.

85 Dorozynski, A., “Highest French Court Awards Compensation for ‘Being Born’” (2001) 323 B.M.J. 1384Google Scholar. The case reference is Cass. Ass.Plén. 28 November 2001, J.C.P. 2002.II.10018, conclusions Sainte-Rose, note Chabas, and the decisions are noted in Duguet, A., “Wrongful Life: The Recent French Cour de Cassation Decisions” (2002) 9 E.J.H.L.139, 145. For an academic suggestion that Down's syndrome might qualify, see e.g. K. Warner, “Wrongful Life Goes Down Under” (2007) 123 L.Q.R. 209Google Scholar, 212.

86 (2006) 226 C.L.R. 52, Crennan J. at [261].

87 On causation see e.g. A. Morris and S. Saintier, note 5 above, pp. 187-188, who suggest (at p. 188, emphasis in original) that the disabled life of a child affected by rubella “has two causes: the rubella and the doctor's negligence”. Morris and Saintier distinguish between the contraction of rubella per se and the fact of having to live with its consequences.

88 [1981] 1 W.L.R. 1421. Cited in McKay v Essex A.H.A. [1982] 1 Q.B. 1166, by Stephenson L.J. at p. 1169E-F

89 [1982] 1 Q.B. 1166, Michael Hutchison Q.C. and Terence Coghlan, at p. 1169F.

90 Ibid. Stephenson L.J. at p. 1180E-G, my emphasis.

91 (2006) 226 C.L.R. 52, Kirby J. at [20] and [105] respectively.

92 Ibid. Crennan J. at [260].

93 [1982] 1 Q.B. 1166, Ackner L.J. at p. 1188D-E.

94 Ibid. Stephenson L.J. at p. 1180E; Ackner L.J. at p. 188E.

95 [1997] 1 All E.R. 906.

96 (2005, CA) EWCA Civ 1181.

97 Ibid. at [87], per Wall L.J.

98 Airedale N.H.S. Trust v Bland [1993] A.C. 789, in which the House of Lords affirmed that it was lawful to withdraw artificial nutrition and hydration from a patient in persistent vegetative state.

99 See e.g. Re MB [1997] 2 F.L.R. 426, at p. 439.

100 (2005, CA) EWCA Civ 1181 at [87].

101 See e.g. Todd, S., “Wrongful Conception, Wrongful Birth and Wrongful Life” [2005] Sydney Law Rev. 536, 540Google Scholar.

102 (2006) 226 C.L.R. 52, Crennan J. at [256].

103 Ibid.

104 That is, the illegality of euthanasia.

105 Note 36 above.

106 [2003] EWHC 3318. When the police decided not to pursue a prosecution, the claimant succeeded in obtaining permission to proceed with a claim for judicial review of that decision. However, the hearing was then suspended pending a renewed police investigation. In due course the Crown Prosecution Service (“CPS”) announced that, following an extensive review of evidence of various kinds, it would not prosecute the doctors in the case.

107 [2002] Q.B. 266, Brooke L.J. at p. 283. The point is further discussed in R. Scott, note 37 above, chs. 2 and 3.

108 For a full discussion, see R. Scott, note 37 above, ch. 2.

109 Sheldon, S. and Wilkinson, S., “Termination of Pregnancy for Reason of Foetal Disability: are there Grounds for a Special Exception in Law?” (2001) 9 Med. Law Rev. 85Google Scholar.

110 Her brother apparently has Down's syndrome. http://www.telegraph.co.uk/opinion/main.jhtml?xml=/opinion/2005/03/20/do2001.xml&sSheet=/opinion/2005/03/20/ixop.html.

111 R. Scott, note 37 above, ch. 2.

112 E.g. Rand v East Dorset Health Authority [2000] 56 B.M.L.R. 39.

113 Cass. Ass.Plén. 28 November 2001, J.C.P. 2002.II.10018.

114 If the moral and legal legitimacy of abortion is not accepted, of course, this does not hold. An anti-abortion strand is particularly apparent in those parts of US case-law in which also a wrongful birth action has been rejected. For further discussion, see e.g. R. Scott, note 37 above, ch. 3.

115 [1982] 1 Q.B. 1166, Stephenson L.J. at pp. 1178H–1180A. He notes that this section of the Act gives rise to a duty to advise the pregnant woman about the fetus's condition, so that she has the option of termination (at p. 1180C). Although he notes that the disability ground of the Act did not (then) apply to the viable fetus, when the Abortion Act was amended by the HFE Act 1990, terminations on this ground became lawful until birth.

116 (2006) 226 C.L.R. 52 at [247].

117 RCOG Ethics Committee, A Consideration of the Law and Ethics in Relation to Late Termination of Pregnancy for Fetal Abnormality (RCOG Press, March 1998), para 5.7.2(d).

118 On the relevance of the ‘neonate case-law’, see also A. Morris and S. Saintier, note 5 above, pp. 173–174.

119 See R. Scott, note 37 above, ch. 2.

120 [1982] 1 Q.B. 1166, Stephenson L.J. at pp. 1180H–1181A. In McKay v Essex A.H.A., Griffiths L.J. also adverts to the possibility of a child “born with only a slight deformity” when a risk of a greater one had not been the subject of prenatal advice, suggesting that if such a claim were rejected then a claim for a more serious “injury”, as he puts it, could only be brought on the unknowable basis that “it were better dead than alive” (at p. 1193B). Taking a similar line to these judges and commenting on the decision below the High Court decision in Harriton, see also Stretton, D., “The Birth Torts: Wrongful Birth and Wrongful Life” (2005) 10 Deakin L. Rev. 319, 364CrossRefGoogle Scholar, who suggests that “even the trivially disabled could claim”.

121 [1982] 1 Q.B. 1166, Stephenson L.J. at p. 1181A.

122 [2002] Q.B. 266.

123 Zepeda v Zepeda, 41 IllApp 2d 240 (1963). For discussion see H. Teff, above n 59, who argues, p. 429, that “Zepeda and its progeny … both trivialised and distorted the notion of ‘wrongful life’”.

124 In reality, there is no evidence that parents actually seek perfection either by PND or PGD. In any event, those using PGD will rapidly see how selecting against minor features (or in favour of positive ones) is something of a hypothetical luxury given the constraints placed on PGD in the first place by the very finite resource that embryos are. See R. Scott, above n 37, ch. 3 (on PND) and chs. 4 and 5 (on PGD).

125 Ibid. ch. 3.

126 (2006) 226 C.L.R. 52 at [82], footnote omitted.

127 Ibid. at [83].

128 “[S]ymbolic awards are regularly made for pain and suffering, even for loss of expectation of life.” Fleming, The Law of Torts, 9th ed (1998) pp. 184–185 (footnote omitted). (2006) 226 C.L.R. 52 Kirby J. at [83]. Note also H. Teff, above note 59, p. 435: “[A]ll awards for nonpecuniary loss are arbitrary, conventional sums, largely determined by a rough and ready tariff. In the last analysis they are more intelligible as a general vindication of rights, or as reasonable solace for the plaintiff's condition, than as a purported restoration of the status quo.” (Emphasis in original, footnote omitted.) On the “inherent” imprecision of damages, see A. Capron, above note 59, p. 648, and further p. 649.

129 H. Teff, above note 59. On the comparison between someone's present existence and the state of non-existence, he observes, p. 433: “[N]othing in principle prevents us from assigning relative values to both conditions and then calculating damages in a manner consistent with legal theory.”

130 (2006) 226 C.L.R. 52, Kirby J. at [84].

131 Ibid. at [85].

132 Ibid. at [95].

133 Ibid. He also notes that sometimes courts that have rejected the wrongful life action have done so not because of the difficulties of determining damages but on the basis that existence is always preferable, citing H. Teff's discussion of the fact that such a judgment requires that a value be put on non-existence, note 59 above, p. 433.

134 See e.g. Airedale N.H.S. Trust v Bland [1993] A.C. 789, at p. 868C-D, per Lord Goff: “[T]he question is not whether it is in the best interests of the patient that he should die. The question is whether it is in the best interests of the patient that his life should be prolonged by the continuance of this form of medical treatment or care.”

135 (2006) 226 C.L.R. 52, Kirby J. at [96].

136 Ibid. at [101].

137 Ibid. at [104].

138 Ibid.

139 Ibid. at [105], my emphasis. As noted above, in McKay v Essex A.H.A. [1982] 1 Q.B. 1166, Stephenson L.J. himself expressed a similar view, at p. 1182E.

140 Contrary e.g. to the views of A. Shapira, note 47 above, p. 373, who raises queries e.g. about Down's syndrome or missing limbs.

141 (2006) 226 C.L.R. 52, Kirby J. at [109].

142 [1982] 1 Q.B. 1166, Stephenson L.J. at p. 184G.

143 Law Commission, Report on Injuries to Unborn Children, (1974) No. 60, Cmnd 5709, para 89.

144 E. Hondius, note 6 above, p. 155.

145 (2006) 226 C.L.R. 52, Kirby J. at [87].

146 Cass. Ass. Plén., 17 December 2000, J.C.P. 2000. II.10438, as discussed in A. Morris and S. Saintier, note 5 above, p. 186. The meaning of the notion of “dignity” is of course contested. For criticism of the parental action as a “substitute”, see H. Teff, note 59 above, p. 430.

147 On this point see also Weir, T., “The Unwanted Child” [2002] Edinburgh L.R. 244, 249CrossRefGoogle Scholar: “If the decision was not worse for the defendants, it was better for the child, since the money would be his, not apt to be dissipated by the parents' fecklessness or on their death.”

148 E. Hondius, note 6 above, p. 155.

149 (2006) 226 C.L.R. 52 at [122].

150 In the first instance, see Frost v Chief Constable of South Yorkshire Police [1999] 2 A.C. 455, which concerned police officers' unsuccessful claim for compensation for the psychiatric damage they sustained as a result of the Hillsborough football stadium disaster.

151 [2000] 2 A.C. 59.

152 Ibid. at p. 82.

153 Ibid.

154 Caparo Industries Plc v Dickman [1990] 2 A.C. 605.

155 [2000] 2 A.C. 59 at p. 84.

156 [2002] Q.B. 266.

157 Ibid. at [50]. See also e.g. Hardman v Amin (2001) 59 B.M.L.R. 58 and Lee v Taunton and Somerset N.H.S. Trust [2001] 1 F.L.R .419.

158 [2004] 1 A.C. 309, per Lords Hutton (at [91]), Hope (at [57]) and Steyn (at [35]) (the latter two dissenting in Rees itself).

159 Ibid. per Lord Bingham (at [9]), with whom Lord Nicholls agreed (at [19]), and also Lord Scott (at [147]).

160 Indeed, in Rees (ibid.) Lord Scott, who had been concerned about the question of foreseeability, noted at [147]: “It might be otherwise in a case where there had been particular reason to fear that if a child were conceived and born it might suffer from some inherited disability. And, particularly, it might be otherwise in a case where the very purpose of the sterilisation operation had been to protect against that fear.”

161 See note 37 above.

162 A similar point is made in relation to the objection of doctors and insurers to the Perruche decision in T. Weir, note 147 above, p. 249.

163 See e.g. Nunnerley v Warrington H.A. [2000] Lloyd's Rep. 170, and Anderson v Forth Valley Health Board (1997) 44 B.M.L.R. 108 (Ct Sess. (OH)). In both cases the costs of the care of a child into adulthood were recoverable.

164 This question has been brought to public attention, for instance, by Christine Tomkins, Chief Executive of the Medical Defence Union. See e.g. “N.H.S. Compensation System Unsustainable, Says Insurer”, http://www.guardian.co.uk/society/2013/jan/11/N.H.S.-compensation-unsustainable-insurer. Accessed 11 January 2013.

165 [1982] 1 Q.B. 1166, Stephenson L.J. at p. 1181B.

166 Ibid. at p. 1188G.

167 Pearson Commission, Royal Commission on Civil Liability and Compensation for Personal Injury (1978), para. 1465. For R. Gillon, this is a reason to reject claims for wrongful life all together. Gillon, R., “‘Wrongful Life Claims’”, (1998) 24 J.M.E. 363, 364Google Scholar.

168 J. Glover, note 63 above, p. 60. Glover writes of a “test” of “urg[ing] avoidance where possible”, noting that “presumably [this is] in line with the thinking of most potential parents”.

169 Congenital Disabilities (Civil Liability) Act 1976, s. 2, as recommended in the Law Commission, note 144 above, para. 55.

170 See the analysis in R. Scott, Rights, Duties and the Body: Law and Ethics of the Maternal-Fetal Conflict (Oxford 2002) ch. 6.

171 E.g. Re M.B., note 33 above, discussed in ibid. ch 3. For recognition of the relevant sensitivities, see also A. Capron, note 59 above, p. 664: “[T]he problem of drawing lines would be unusually difficult and sensitive. Which diseases are ‘bad enough’ that abortion (or nonconception) is mandatory, rather than merely acceptable? As one moves away from the few polar cases substantial disagreement is likely about whether each disease is burdensome enough that to run the risk of its occurring in one's offspring would be irresponsible.”

172 Winnipeg Child and Family Services (Northwest Area) v D.F.G. (1996) [1997] 152 D.L.R. (4th) 193. This case in fact concerned solvent abuse by a pregnant woman, which might legitimately be judged to constitute unreasonable conduct toward the fetus. However, policy reasons strongly weighed against restricting maternal autonomy. Compare Dobson v Dobson [1999] 2 Can S.C.R. 753, which concerned a boy's suit against his mother for prenatal injuries sustained as a result of her negligent driving. The Supreme Court overturned the decision of the Court of Appeal for New Brunswick, holding – apparently on policy grounds – that no such action can lie. At the same time, however, the Court held that it may well be appropriate for the legislature to create an exception to maternal tort immunity in the context of negligent driving. Both cases are discussed extensively in R. Scott, note 170 above, ch. 6.

173 (2006) 226 C.L.R. 52, Kirby J. at [127]–[133], who cites the Canadian cases noted above.

174 Ibid. Crennan J. at [250].

175 E. Hondius, note 6 above, p. 155.

176 On the idea of a duty being owed to the (future) child to advise the mother in relevant ways, see also A. Morris and S. Saintier, note 5 above, p. 178.

177 [1982] 1 Q.B. 1166, Stephenson L.J. at p. 1180H.

178 (2006) 226 C.L.R. 52, Crennan J. at [263]. Note, however, that the fetus is not a legal person (see e.g. Re M.B. [1997] 2 F.L.R. 426) and, on many views, not a moral one. For a contrary moral view, see J. Finnis, “The Rights and Wrongs of Abortion: A Reply to Judith Thomson” (1973) 2 Phil. & Pub. Aff. 117.

179 As discussed in e.g. J. Glover, note 63 above, pp. 29-36.

180 There is also the “loss of support argument” which suggests that there will be less support to people with disabilities as a result of such practices, including e.g. by means of a reduction in research or research funding: ibid. ch. 3.

181 For discussion, see e.g. S. Wilkinson, note 62 above, ch. 6; R. Scott, note 37 above, ch. 1.

182 Cass. Ass. Plén. 28 November 2001, J.C.P. 2002.II.10018.

183 A. Dorozynski, note 85 above, p. 1384.

184 Ibid. See also J.K. Mason and G. Laurie, note 6 above, para. 10.68.

185 The reaction is also described in S. Taylor, note 5 above, p. 105, and in A. Morris and S. Saintier, note 5 above, pp. 188-191. See further P. Lewis, note 5 above and T. Weir, note 147 above.

186 Loi no 2002-303 du 4 mars 2002 relative aux droits des malades et à laqualité du système de santé, Art. 1.

187 A. Morris and S. Saintier, note 5 above, p. 189.

188 Ibid. p. 189; S. Taylor, above n 5, p. 106.

189 Provided they can show a “faute caractérisée”, a novel concept in French civil law that may be close to “faute lourde”, which is again not precisely defined, S. Taylor, note 5 above, pp. 105–106.

190 Ibid. p. 106.

191 Article 1-III advises that the National Consultative Committee on Disabled Persons will evaluate the “material, emotional and financial, situation of disabled people” and present its conclusions to Parliament and government; but there is no obligation to act on these recommendations. A. Morris and S. Saintier, note 5 above, pp. 189–190.

192 [1982] 1 Q.B. 1166, Ackner L.J. at p. 1186G–H.

193 Ibid. at pp. 1186H–1187A, emphasis in original.

194 I. Kennedy and A. Grubb, Medical Law: Text with Materials, 3rd edn (London 2000), 1552.

195 Fortin, J., “Is the ‘Wrongful Life Action Really Dead?” [1987] J.S.W.L. 306, p. 310Google Scholar, emphases in original.

196 Law Commission, note 143 above, para 89; McKay v Essex A.H.A. [1982] 1 Q.B. 1166, Ackner L.J. at p. 1187A.

197 [1982] 1 Q.B. 1166, Ackner L.J. at p. 1187B. This fear was also highlighted by the Law Commission, note 143 above, para. 89, as well by the Pearson Commission, note 167 above, para. 1485.

198 [1982] 1 Q.B. 1166, Griffiths L.J. at p. 1192D-F.

199 (2006) 226 C.L.R. 52, Kirby J. at [113]–[116].

200 For similar criticism see H. Teff, note 59 above, p. 437.

201 See discussion above of the terms of the disability ground of the Abortion Act 1967 (as amended) and wrongful birth case-law.