Australia: Wrongful birth in the spotlight

Life Sciences Spotlight
Last Updated: 4 March 2012
Article by Michael Regos

Keeden Waller was born 11 August 2000. He had been conceived with the assistance of In Vitro Fertilisation (IVF) treatment. Days after his birth, he suffered a stroke causing severe brain damage and leaving him with multiple disabilities. The cause of the stroke was antithrombin deficiency, which Keeden had inherited from his father.

Mrs Waller commenced proceedings against IVF specialist, Dr Christopher James, in the New South Wales Supreme Court (proceeding No. 2001/00067486), claiming damages for 'wrongful birth'. Compensation of around $10 million was sought for the costs associated with raising Keeden. Mrs Waller asserted that it had not been for Dr James' negligence, Keeden would not have been born.

Wrongful birth and wrongful life?

The law distinguishes between two types of actions where a child is born in unwanted circumstances: 'wrongful birth' and 'wrongful life'.

Wrongful birth claims involve circumstances where the parents of a child born as a consequence of negligence of another claim the costs associated with raising the unwanted child. Examples of such cases include children born after a negligently performed sterilisation procedure and children born following the failure of clinicians to detect foetal abnormalities during antenatal maternal testing which, had they been detected, would have led to the mother terminating the pregnancy.

Wrongful life claims involve a claim for compensation brought by the child itself, alleging that the child was born as a consequence of the negligence of another (in the sort of circumstances referred to above) and seeks compensation for his or her life; arguing that had it not been for the negligence he or she would not have been born.

Are damages recoverable for wrongful birth and wrongful life?

The law in Australia recognises claims for wrongful birth, but not wrongful life.

Unlike in other jurisdictions where claims for wrongful birth were not recognised, the High Court of Australia in 2003 settled once and for all that the parents of a child born as a consequence of the negligence of another are entitled to claim for and recover the costs of raising the child to adulthood - see Cattanach v Melchior [2003] 215 CLR 1] (Cattanach). In that case, the child was a healthy child.

What there has not been in Australia is a Superior Court judgment for wrongful birth that involves a disabled child, as is Keeden Waller.

Although a judgment has not been delivered in Keeden Waller's case, the principle that no doubt will be applied is that the parents are entitled to the costs of raising Keeden. The interesting dilemma is what costs will be ordered.

The lifelong costs associated with raising a child with severe disabilities are generally in the vicinity of $7 million. They will be more or less depending upon the level of disability and amount of care required.

In the High Court decision of Cattanach, the Court ruled that the parents could recover the costs of the child to age 18, at which time the child was classed as an adult and parental responsibility ceased. The court did, however, comment that, in today's society, there might be circumstances that justify the costs for a longer period of time, say 21 years, whilst the child undergoes ongoing education.

However, in the case of a child with severe disabilities, should the parents be awarded the costs of raising the child (including the costs associated with the child's disabilities) to age 21, for the whole of the child's life, or for the whole of the parents' life?

These are complex questions. Generally, parental responsibilities end at age 18. Should the defendant be obliged to pay costs associated with raising the child beyond the age of 18 years? If so, should the parents be awarded damages to cover the costs associated with raising the child for the entirety of the child's life? Assuming for the moment that the child is likely to outlive the parents, should the defendant pay costs to the parents for raising a child beyond the date of the parents' death, when obviously the parents would not incur any costs from that point on? Should the costs include the costs associated with the disabilities?

There are many arguments that the court will need to consider and, either way, there is a high probability the matter will end up in the High Court for consideration.

The case has particular interest for those involved in IVF, genetics and maternal screening. Any mistakes that result in a disabled child being born could have vast monetary consequences for them or their liability insurers.

© DLA Piper

This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not used as, a substitute for taking legal advice in any specific situation. DLA Piper Australia will accept no responsibility for any actions taken or not taken on the basis of this publication.


DLA Piper Australia is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities. For further information, please refer to www.dlapiper.com

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