Joy to the World! A (Healthy) Child Is Born! Reconceptualizing Harm in Wrongful Conception
| Author | Nicolette Priaulx |
| Date | 01 March 2004 |
| DOI | 10.1177/0964663904040190 |
| Published date | 01 March 2004 |
| Subject Matter | Journal Article |
JOY TO THE WORLD!
A (HEALTHY) CHILD IS BORN!
RECONCEPTUALIZING ‘HARM’
IN WRONGFUL CONCEPTION
NICOLETTE PRIAULX
University of Kent, UK
ABSTRACT
The wrongful conception action holds both a troubled past and future. As a
response to rapid technological advancement in the area of reproduction, this action
has introduced complex legal and ethical issues in the courts’ efforts to respond to
the question: ‘Can parenthood ever constitute an injury?’ At the heart of this
dilemma lies the manner by which both law and society conceptualize ‘harm’ – is
this ‘part of the normal vicissitudes of life’ or a harmful event? But this question is
not decided within a legal vacuum and public policy factors have deeply influenced
the nature and existence of case law in this field. In the context of the controversial
cases of McFarlane v Tayside Health Board [2000] and Rees v Darlington Memorial
Hospital [2002], this article critically examines how ‘harm’ is judicially character-
ized and explores the various tensions emerging from conflicting harm constructs.
In arguing that the courts must seek to find a balanced approach between public
policy concerns and reproductive autonomy, this article will present a fresh theor-
etical perspective to the conceptualization of harm based on autonomy as the central
organizing principle.
INTRODUCTION
THEINCREASINGmedicalization of women’s sexual and reproductive
health remains a controversial issue in feminist scholarship. The natural
functioning of women’s bodies, menstruation, pregnancy, childbirth,
and menopause, while not experienced as ‘illnesses’, have nevertheless been
redefined as medical problems and subsumed within the jurisdiction of
medicine as necessitating surveillance and intervention (Nott and Morris,
2002). The growth of reproductive technology and genetic knowledge means
SOCIAL & LEGAL STUDIES Copyright © 2004 SAGE Publications
London, Thousand Oaks, CA and New Delhi, www.sagepublications.com
0964 6639, Vol. 13(1), 5–26
DOI: 10.1177/096466304040190
6
SOCIAL & LEGAL STUDIES 13(1)
that women’s reproductive lives will remain under clinical scrutiny. Seem-
ingly beneficial technologies present women with serious dilemmas; for
example, prenatal testing offers few answers where serious genetic disorders
are detected in a foetus owing to shortfalls between ‘diagnosis’ and ‘cure’.
Similarly, techniques of visualization in monitoring foetal health are shifting
perceptions of pregnancy, posing the risk of constructing ‘personhood from
“natural” facts’ (Zechmeister, 2001: 393). Noting developments in the US
where pregnant women have been held criminally accountable for harms to
their unborn children, Sally Sheldon (1997) suggests the danger here is that
such knowledge may be imported into law. While in English law, maternal
duties are not reflected so conspicuously, they nevertheless do exist. Pregnant
women refusing clinically indicated treatment have found their own views
judicially discredited as ‘irrational, selfish or mad’.1 And apparent shifts in
legal thinking, most notably that a pregnant woman holds the right to decline
any medical intervention for the sake of foetal health, nevertheless resonate
against societal expectations that ‘mothers must, if they are mentally normal,
love their children, nurture and protect them’ (Weaver, 2002: 239). Therefore,
the law is deeply implicated in the increasing medical control over women’s
lives, not only through exercising paternalistic controls over women and
deference to medical opinion, but in also permitting medicine to colonize
important areas of women’s reproductive lives – for example, fertility and
abortion.
While such rapid advancement in the area of reproductive medicine has
had obvious impacts on women’s reproductive autonomy, other perceptible
effects are evident. Heightened expectations in the promises of medical
science have not only led to an expansion of the ethical obligations of
medicine, but also legal duties under the law of negligence. As such, the
action for wrongful conception2 can be viewed as a product of ‘medical
progress’. While relatively new to the UK courts, this action clearly demon-
strates the law of tort’s ability to embrace a widening ambit of harms under
its cloak. Bringing fresh promises for claimants whose reproductive decisions
are destroyed through negligent treatment, it has also required the courts to
address difficult ethical and legal questions.
Central to this action lies a tension between two constructions of ‘harm’.
Is unsolicited parenthood ‘part of the normal vicissitudes of life’ (Markesinis,
2001: 81), or a ‘harmful’ event that should be the subject matter of litigation,
sounding in damages? Reference to changing reproductive norms might be
thought capable of providing a decisive answer. The promotion of family
planning services in the UK has given rise to different familial forms, post-
ponement of parenthood and childless women (Belcher, 2000), indicating that
traditional domestic activities such as child-rearing are no longer seen as
‘central unifying roles’ (Clarke and Roberts, 2002: 165). Therefore, normal
expectations of life may include the decision to limit family size or abstain
from parenthood altogether, but these expressions of reproductive choice
frequently depend on the medical profession. When such expectations are
defeated through negligence, however, individuals must confront a different
PRIAULX: WRONGFUL CONCEPTION
7
life plan, one that arguably holds inescapable parenting obligations, includ-
ing financial, social and psychological implications.3
Affording legal recognition to this type of harm has not been straight-
forward. The action for wrongful conception does not sit easily within the
paradigm of the conventional negligence claim, clearly involving more than
the ‘run-of-the-mill features to be found in other areas of medical negligence’
(Symmons, 1987: 298). Claiming that under some circumstances ‘a new life
amounts to damage in the law of tort’ (Donnelly, 1997: 10) ultimately requires
the courts to recognize a new wrong. And perhaps for these reasons the
courts have struggled to reconcile its position within the law of tort. Nor is
the related question ‘can parenthood constitute an injury?’ decided within a
legal vacuum. Policy factors deeply affect the nature and existence of case law.
This article approaches the wrongful conception action from the perspec-
tive of parental harm, in examining how the English courts conceptualize the
impact of unsolicited parenthood. Focusing in particular on the controversial
cases of McFarlane v Tayside Health Board [2000] and Rees v Darlington
Memorial Hospital [2002], this article adopts the concept of ‘gendered harm’
in considering recent judicial refusals to recognize the ‘harm’ of unsolicited
parenthood. In considering developments initiated by Rees, most notably the
carving out of an exception for disabled parents, the dimensions of a harm
construct reliant upon a nexus between disability and (in)capacity will be
explored. Whether differential treatment is justifiable, forms one of the
central themes of this article and the thrust of the argument, developed
throughout, is that the courts must seek to find a balanced approach between
public policy concerns and reproductive autonomy. Accordingly, a fresh
theoretical perspective to the construction of harm will be presented based
on autonomy as the central organizing principle.
REOPENING THE GATES OF POLICY
The stories of parents bringing wrongful conception actions against health
authorities render familiar allegations – clinical mishaps ranging from negli-
gently performed abortions and sterilization, failure to diagnose pregnancy,
to the provision of incorrect test results following post-operative testing.
Claiming that in the absence of such negligent treatment the child would not
have been born, parents have typically sought to claim damages for the pain
and suffering of the physical events of pregnancy and childbirth and for the
costs of child rearing. While English law has traditionally permitted both
claims, the question of whether parents should be entitled to the costs of
child-rearing has proved controversial. The initial reaction to such a claim
was outright rejection. In Udale v Bloomsbury Area Health Authority
[1983], Jupp J denied damages under this head on the grounds of public
policy, observing inter alia, that the birth of a child ‘is a blessing and an
occasion for rejoicing’ (at 531). Although not repudiating the ‘child as a
blessing’, Udale was soon overruled by Thake v Maurice [1985]. In allowing
8
SOCIAL & LEGAL STUDIES 13(1)
damages for child-rearing, Peter Pain J preferred to address the issue in
economic terms: ‘. . . Every baby has a belly to be filled and a body to be
clothed’ (at 230). And this more pragmatic line of reasoning was followed by
the Court of Appeal in Emeh v Kensington, Chelsea and Westminster Area
Health Authority [1985]. Despite expressions of ‘surprise’ that English law
should permit such recovery in Jones v Berkshire AHA (1986), Gold v
Haringey Health Authority [1988] and Allen v Bloomsbury [1983], it seemed
that Emeh had settled the matter. As Mary Donnelly noted, ‘in the unlikely
event of the House of Lords overruling any of these decisions, the policy
debate in England appears to be concluded’ (1997: 16). But the gates of policy
were about to reopen in the case of McFarlane.
In 1999 the House of Lords were faced with two claimants, Mr and Mrs
McFarlane, who had been assured by doctors that the husband was no longer
fertile following his vasectomy...
A (HEALTHY) CHILD IS BORN!
RECONCEPTUALIZING ‘HARM’
IN WRONGFUL CONCEPTION
NICOLETTE PRIAULX
University of Kent, UK
ABSTRACT
The wrongful conception action holds both a troubled past and future. As a
response to rapid technological advancement in the area of reproduction, this action
has introduced complex legal and ethical issues in the courts’ efforts to respond to
the question: ‘Can parenthood ever constitute an injury?’ At the heart of this
dilemma lies the manner by which both law and society conceptualize ‘harm’ – is
this ‘part of the normal vicissitudes of life’ or a harmful event? But this question is
not decided within a legal vacuum and public policy factors have deeply influenced
the nature and existence of case law in this field. In the context of the controversial
cases of McFarlane v Tayside Health Board [2000] and Rees v Darlington Memorial
Hospital [2002], this article critically examines how ‘harm’ is judicially character-
ized and explores the various tensions emerging from conflicting harm constructs.
In arguing that the courts must seek to find a balanced approach between public
policy concerns and reproductive autonomy, this article will present a fresh theor-
etical perspective to the conceptualization of harm based on autonomy as the central
organizing principle.
INTRODUCTION
THEINCREASINGmedicalization of women’s sexual and reproductive
health remains a controversial issue in feminist scholarship. The natural
functioning of women’s bodies, menstruation, pregnancy, childbirth,
and menopause, while not experienced as ‘illnesses’, have nevertheless been
redefined as medical problems and subsumed within the jurisdiction of
medicine as necessitating surveillance and intervention (Nott and Morris,
2002). The growth of reproductive technology and genetic knowledge means
SOCIAL & LEGAL STUDIES Copyright © 2004 SAGE Publications
London, Thousand Oaks, CA and New Delhi, www.sagepublications.com
0964 6639, Vol. 13(1), 5–26
DOI: 10.1177/096466304040190
6
SOCIAL & LEGAL STUDIES 13(1)
that women’s reproductive lives will remain under clinical scrutiny. Seem-
ingly beneficial technologies present women with serious dilemmas; for
example, prenatal testing offers few answers where serious genetic disorders
are detected in a foetus owing to shortfalls between ‘diagnosis’ and ‘cure’.
Similarly, techniques of visualization in monitoring foetal health are shifting
perceptions of pregnancy, posing the risk of constructing ‘personhood from
“natural” facts’ (Zechmeister, 2001: 393). Noting developments in the US
where pregnant women have been held criminally accountable for harms to
their unborn children, Sally Sheldon (1997) suggests the danger here is that
such knowledge may be imported into law. While in English law, maternal
duties are not reflected so conspicuously, they nevertheless do exist. Pregnant
women refusing clinically indicated treatment have found their own views
judicially discredited as ‘irrational, selfish or mad’.1 And apparent shifts in
legal thinking, most notably that a pregnant woman holds the right to decline
any medical intervention for the sake of foetal health, nevertheless resonate
against societal expectations that ‘mothers must, if they are mentally normal,
love their children, nurture and protect them’ (Weaver, 2002: 239). Therefore,
the law is deeply implicated in the increasing medical control over women’s
lives, not only through exercising paternalistic controls over women and
deference to medical opinion, but in also permitting medicine to colonize
important areas of women’s reproductive lives – for example, fertility and
abortion.
While such rapid advancement in the area of reproductive medicine has
had obvious impacts on women’s reproductive autonomy, other perceptible
effects are evident. Heightened expectations in the promises of medical
science have not only led to an expansion of the ethical obligations of
medicine, but also legal duties under the law of negligence. As such, the
action for wrongful conception2 can be viewed as a product of ‘medical
progress’. While relatively new to the UK courts, this action clearly demon-
strates the law of tort’s ability to embrace a widening ambit of harms under
its cloak. Bringing fresh promises for claimants whose reproductive decisions
are destroyed through negligent treatment, it has also required the courts to
address difficult ethical and legal questions.
Central to this action lies a tension between two constructions of ‘harm’.
Is unsolicited parenthood ‘part of the normal vicissitudes of life’ (Markesinis,
2001: 81), or a ‘harmful’ event that should be the subject matter of litigation,
sounding in damages? Reference to changing reproductive norms might be
thought capable of providing a decisive answer. The promotion of family
planning services in the UK has given rise to different familial forms, post-
ponement of parenthood and childless women (Belcher, 2000), indicating that
traditional domestic activities such as child-rearing are no longer seen as
‘central unifying roles’ (Clarke and Roberts, 2002: 165). Therefore, normal
expectations of life may include the decision to limit family size or abstain
from parenthood altogether, but these expressions of reproductive choice
frequently depend on the medical profession. When such expectations are
defeated through negligence, however, individuals must confront a different
PRIAULX: WRONGFUL CONCEPTION
7
life plan, one that arguably holds inescapable parenting obligations, includ-
ing financial, social and psychological implications.3
Affording legal recognition to this type of harm has not been straight-
forward. The action for wrongful conception does not sit easily within the
paradigm of the conventional negligence claim, clearly involving more than
the ‘run-of-the-mill features to be found in other areas of medical negligence’
(Symmons, 1987: 298). Claiming that under some circumstances ‘a new life
amounts to damage in the law of tort’ (Donnelly, 1997: 10) ultimately requires
the courts to recognize a new wrong. And perhaps for these reasons the
courts have struggled to reconcile its position within the law of tort. Nor is
the related question ‘can parenthood constitute an injury?’ decided within a
legal vacuum. Policy factors deeply affect the nature and existence of case law.
This article approaches the wrongful conception action from the perspec-
tive of parental harm, in examining how the English courts conceptualize the
impact of unsolicited parenthood. Focusing in particular on the controversial
cases of McFarlane v Tayside Health Board [2000] and Rees v Darlington
Memorial Hospital [2002], this article adopts the concept of ‘gendered harm’
in considering recent judicial refusals to recognize the ‘harm’ of unsolicited
parenthood. In considering developments initiated by Rees, most notably the
carving out of an exception for disabled parents, the dimensions of a harm
construct reliant upon a nexus between disability and (in)capacity will be
explored. Whether differential treatment is justifiable, forms one of the
central themes of this article and the thrust of the argument, developed
throughout, is that the courts must seek to find a balanced approach between
public policy concerns and reproductive autonomy. Accordingly, a fresh
theoretical perspective to the construction of harm will be presented based
on autonomy as the central organizing principle.
REOPENING THE GATES OF POLICY
The stories of parents bringing wrongful conception actions against health
authorities render familiar allegations – clinical mishaps ranging from negli-
gently performed abortions and sterilization, failure to diagnose pregnancy,
to the provision of incorrect test results following post-operative testing.
Claiming that in the absence of such negligent treatment the child would not
have been born, parents have typically sought to claim damages for the pain
and suffering of the physical events of pregnancy and childbirth and for the
costs of child rearing. While English law has traditionally permitted both
claims, the question of whether parents should be entitled to the costs of
child-rearing has proved controversial. The initial reaction to such a claim
was outright rejection. In Udale v Bloomsbury Area Health Authority
[1983], Jupp J denied damages under this head on the grounds of public
policy, observing inter alia, that the birth of a child ‘is a blessing and an
occasion for rejoicing’ (at 531). Although not repudiating the ‘child as a
blessing’, Udale was soon overruled by Thake v Maurice [1985]. In allowing
8
SOCIAL & LEGAL STUDIES 13(1)
damages for child-rearing, Peter Pain J preferred to address the issue in
economic terms: ‘. . . Every baby has a belly to be filled and a body to be
clothed’ (at 230). And this more pragmatic line of reasoning was followed by
the Court of Appeal in Emeh v Kensington, Chelsea and Westminster Area
Health Authority [1985]. Despite expressions of ‘surprise’ that English law
should permit such recovery in Jones v Berkshire AHA (1986), Gold v
Haringey Health Authority [1988] and Allen v Bloomsbury [1983], it seemed
that Emeh had settled the matter. As Mary Donnelly noted, ‘in the unlikely
event of the House of Lords overruling any of these decisions, the policy
debate in England appears to be concluded’ (1997: 16). But the gates of policy
were about to reopen in the case of McFarlane.
In 1999 the House of Lords were faced with two claimants, Mr and Mrs
McFarlane, who had been assured by doctors that the husband was no longer
fertile following his vasectomy...
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