To Be or Not to Be Born-Wrongful Birth and Wrongful Life Actions
To Be or not to Be Born? – Irelands position on Wrongful Birth and Wrongful Life Actions
by Joanne McInerney Solicitor & Notary Public
Paper to the Law Society 2011
To Be or Not to be Born? To Live or Not to Live? These are the legal questions that have been put to the courts of justice throughout the common law world on the issue of damages in wrongful life and wrongful birth actions. Before we turn to our discussion, we should set out in principle the legal definitions for these medical malpractices in question;
- A wrongful birth action can be defined as a lawsuit brought by parents against a doctor where a child is born due to the negligence in the performance of an abortion or where the defendant has failed to warn the parents that the unborn child suffers a handicap thus depriving them of the chance of having an abortion.  A distinction should also be made for wrongful conception/ pregnancy actions which, can be defined as a lawsuit brought by parents against a doctor for a failed sterilisation procedure. This distinction is quite important, as in some common law countries a wrongful birth action may not be successful however a wrongful conception/ pregnancy action may well succeed, such as in Ireland. Further to this, the distinction between these two actions has also been reflected in the assessment of damages thereafter.
- A wrongful life action can be defined, on the other hand, a claim which is brought by or on behalf of a child born with a congenital defect, who alleges that he or she would have never been born, but for the defendants negligence and accordingly, would have avoided pain and suffering resulting from his or her condition. 
1)The United Kingdom v Ireland
Most of the case law from the United Kingdom and Ireland surrounding the developing and unsettled legalities concerning wrongful birth and wrongful life actions has taken place within the United Kingdom and as such the author proposes to detail and analyse this jurisdiction first. The Emeh v Kensington and Chelsea and Westminster Area Health Authority  case recognised in principle, that pecuniary damages were recoverable for future loss of earnings and maintenance of the child in wrongful birth and wrongful conception cases. In this particular case, the plaintiff became pregnant despite having undergone a sterilisation procedure given the high risks involved in her passing congenital disabilities to a child. However, the court found that as she had refused to undergo a termination after becoming pregnant, this was seen as a novus actus interveniens to the causation of the injury and she was awarded limited damages only up until the time that she discovered that she was pregnant and the costs involved for an additional sterilisation procedure. Most notably in this case no distinction was drawn between a healthy child and a child born with abnormalities. For fifteen years, this line of precedent was predominantly followed in the UK and the law was seen as settled in this area as per Lloyd, LJ in Gold v Haringey Health Authority.
That is until the case of McFarlene v Tayside Health Board in 1999. In this wrongful birth action, the House of Lords allowed general damages for the pain and suffering and costs involved with the pregnancy however they did not allow damages to be recovered by the parents for the future maintenance of this child, as the child had been born healthy albeit as a result of a failed sterilisation procedure. Based on the concept of distributive justice and public policy the child was deemed to be a blessing.  Moreover, the court found that such damages for the childs maintenance would constitute an economic loss and therefore were not recoverable in such an instance as this. Such a legal reasoning is now widely seen in the UK as an allowance for a limited type of damages for the direct losses involved on the part of the Plaintiff only.
A different line of legal reasoning was adopted in Parkinson v St. James and Seacroft University NHS Trust  where it was held that the parents of a disabled child could recover damages for the additional costs involved in rearing their disabled child. Lady Justice Hale referred to a deemed equilibrium test in comparing an instance where the financial burden of maintaining an unplanned healthy child balanced out against the benefits of having a healthy child in the first place. Interestingly, however the courts took a different view in Rees v Darlington Memorial Hospital NHS Trust . Here the plaintiff mother who had suffered severe visual impairment underwent a failed sterilisation procedure and subsequently became pregnant. Although the child was born healthy, the court recognised that the plaintiff would be caused extreme hardship as a result of her own disabilities in rearing the child albeit healthy. Walker LJ, in his legal reasoning rejected the deemed equilibrium test as set out in the Parkinson case preferring instead to rely on the fair, just and reasonable concept akin to that of economic loss. The plaintiff was awarded pecuniary damages for the extra costs involved in caring for the child given her disabilities and inability to care for the child properly without assistance. This case was subsequently appealed and the House of Lords overturned this judgement re-iterating that damages could not be allowed for the costs involved in rearing and caring for a healthy child. By way of an attempted reconciliation of these cases, the court proposed that instead they should add a gloss to the precedent decision in McFarlenes case and allow a sum of 15,000 pounds for general damages for the legal wrong suffered and for loss of parental autonomy in such cases. This reversal of the initial Rees decision appears to have been a very deliberate shift by the House of Lords to move away from the lower courts adaption of the fair, just and reasonable concept which would have effectively opened the doors to allow for a range of economic damages to be considered and awarded in wrongful birth and wrongful conception actions in the UK.
By contrast, there has not been as much litigation brought before the UK courts to date for wrongful life actions. McKay v Essex Area Health Authority  is the principle case within this jurisdiction and this case follows the line of reasoning as set down in the Gleitman v Cosgrave case in the US, where it was found that a claim for wrongful life would be contrary to public policy and that it would be impossible to attempt to assess damages by comparing the value in monetary terms of an abnormal existence to that of non existence at all. The UK has however legislated to allow for such civil suits to be taken by such an injured/ abnormal child under the Congenital Disabilities (Civil Liability) Act 1976. Given that it has been nearly thirty years since the UK judgement in McKay it will interesting to see how the UK courts will deal with such a wrongful life action which may be brought in the future in a more modern context.
A recent High Court judgment in Northern Ireland on the 13 October 2010, (the title of which is unknown)  dealt with two claims for wrongful life which were brought by two children against an IVF clinic. Their claims were that their respective mothers had been inseminated with sperm that was mislabelled at the IVF clinic and this resulted in their being born a darker skin colour than that which their mothers or they themselves would have wanted. This they claimed had caused them to live their lives in a manner in which they felt they were discriminated against by society on account of their darker skin colour. The court ruled against the plaintiff children, as the judges in this case were naturally unwilling to make findings that the plaintiffs had each suffered a wrongful life on account of their darker skin colour. This in their opinion did not constitute an injury in the eyes of the law nor were their lives made so intolerable as result of same. The High Court of Northern Ireland was happy to rely on the US case of Becker v Schwartz  case which refused to recognise wrongful life as a legitimate cause of action. The plaintiff children in this Northern Irish case were seen as healthy and normal children and the difficulty with this outright rejection of such wrongful life actions from a precedent point of view may now be that the courts could reject such a future wrongful life action brought by an unhealthy/ abnormal plaintiff child. One cant help but think that the plaintiffs respective mothers in this particular case may have each had a stronger claim to make for wrongful conception against the IVF clinic in question for the mislabelling of the sperm product in first place. However, such a case would probably have suffered the same fate by a judicial following of the burden v benefit rulings of the previous precedent case law, given that the children were deemed to have been born normal and healthy.
In Ireland, the legal position regarding actions for wrongful birth and wrongful life is as yet unchallenged. There have however, been in recent years some interesting developments in the area of the right not to live. In Re a Ward of Court (withholding medical treatment)(No. 2)  the Irish judiciary attempted to look at the area of the right to live, or the right not to live as in this particular case. Denham, J stated that, The consent which is given by an adult of full capacity is a matter of choice. It is not necessarily a decision based on medical considerations. Thus, medical treatment may be refused for other than medical reasons or reasons most citizens would not regard as rational, but the person of full age and capacity may make the decisions for their own reasons.  This case concerned a woman who as a result of an unsuccessful operation had been left in a permanently vegetative state for over thirty years. The case was brought by members of her family who sought the courts leave to remove the feeding tube to her stomach which was artificially keeping her alive. The Supreme Court held that the right to live as enshrined under the Irish Constitution also concerned the right to die in such a case as this. Where a person is so obviously comatose and cannot be competent in deciding their fate the courts have stood in to take a parens patriae of such a patient as in the Irish Re a Ward of Court case.
In Ireland, the Constitution has a unique and protected legal position and the articles therein confer specific rights which have historically received special consideration in civil actions brought before the Irish judiciary. Of particular relevance to the area of potential wrongful birth and wrongful life actions will be the right to life of the unborn child under Article 40.3.3 of the Constitution which states that;
The state acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, in as far as practicable, by its laws to defend and vindicate that right. 
The case of AG v X & Ors , provides that a legal termination of a child can take place where there is a sufficient threat to the life of the mother if the pregnancy is allowed to continue, and in this situation equal regard must be had to the right to life of the mother under the constitution. Attempts were made by the legislature to regularise the laws in this contentious area by proposing amendments to the Constitution in the abortion referendum of 2002, which was rejected by the people. This rejection has reinforced the findings of the Supreme Court in AG v X & Ors and granted some level of legal recognition however diminutive to the rights of the mother. Most notably, however foetal impairment is not grounds for a termination and as such an abortion under Irish law is still unlawful under sections 58 and 59 of the Offences against the Person Act, 1861. This was further reiterated in Baby O v Minister for Justice . The difficulty with this prohibition on abortion within the state of Ireland is that accordingly, there is no legal duty on medical practitioners to carry out such prenatal tests or to inform the parents of the availability of such tests or procedures as there are in the UK as a result of the Abortion Act 1967. As such, it follows that given there is no such legal duty on a doctor within Ireland, an action for wrongful life could therefore not succeed.
It is also unlikely that any distinctions could ever be made between a healthy and an unhealthy child such as in the UK, given the protected rights of the unborn child under the Irish Constitution and also the judicial reasoning in SPUC v Grogan where Walsh J stated that the qualification of certain pregnancies as being unwanted is …a totally unacceptable position.  As such wrongful birth actions under Irish law would also be unlikely to succeed. Arguably however, this is contrary to Article 8 of the European Convention on Human Rights 1950, which clearly sets out,
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 
The position in Ireland is that even if prenatal defects are identified by the available testing of amniocentesis or chorionic villus sampling from which illness such as Downs Syndrome and cystic fibrosis can be diagnosed , what options are open to the parents under Irish Law? They cannot avail or an abortion service within the island of Ireland. Irrespective of the constitutional right to life of the unborn, would the judiciary seek to protect the constitutional rights of those parents of such a child and their rights to bodily integrity, privacy and equality and further the rights of that child not be born into a world where it would live a limited, often painful and dependant existence in the name or morality and the inflated emphasis which the constitution and the judiciary have in the past given to the rights of the unborn.
There is however some hope for legal activity within the state of Ireland in the area of wrongful conception and this could well be considered. It is thankfully not unlawful to obtain a sterilisation in Ireland and where sterilisation procedures have been performed ineffectively or negligently an action for wrongful conception could be maintained. There is a case in point on same, Byrne v Ryan . In this case the plaintiff had not expected nor wanted the pregnancy and the defendants negligence resulted in a failed sterilisation procedure. The Irish High Court awarded non pecuniary damages for the pain and suffering of Mrs Byrnes two pregnancies and pecuniary damages for the medical costs of an additional sterilisation procedure. The court rejected however, the plaintiffs claims for childrearing expenses in following the Burden v Benefit rule set down in McFarlene v Tayside Health Board.
While the courts in the United Kingdom have made some interesting and authoritative decisions in the area of wrongful birth and pregnancy, they are still reluctant to make findings or awards for damages in favour of wrongful life actions, preferring instead to rely on previous US precedents such as Gleitman v Cosgrave and Becker v Schwarz which have enshrined therein the sanctity of existence. The position in Ireland is obscure. It appears as in the case of Bryne v Ryan that the court will consider and decide on a wrongful conception action but it is yet unknown how they would deal with actions for wrongful birth and wrongful life. Although the Supreme Courts decision in Re a Ward of Court was far reaching and substantive in legal reasoning, it is the authors belief that the Irish judiciary would have difficulty in moving past the conferred rights of the unborn child within the constitution and further to this they may not even be able to provide a distinction between a healthy child and an unhealthy child for the purposes of establishing case law and ultimately legislation regarding these important legal issues. The difficulty then with respect to Ireland in comparison with the United Kingdom and its other common law world counterparts it that the danger will be that there could be a failure to recognise, let alone implement the rights of parents of injured/ abnormal children and the rights of the said children to bring actions and have damages assessed in their favour for wrongful birth and wrongful life actions.
- Bryan McMahon and William Binchy, Law of Torts (2000), Butterworths.
- Michael Powers and Nigel Harris, Medical Negligence(1990) Butterworths.
- James Kingston and Anthony Whelan with Ivana Bacik, Abortion and the Law (1997) Round Hall Sweet and Maxwell.
- Deridre Madden, Medicine, Ethics and the Law (2002) Butterworths.
- Magdalena Kancler, To be or not to be Born; Civil Liability for damage resulting from birth in a comparative context: Recent Polish and Irish caselaw concerning wrongful birth and wrongful conception, Electronic Journal of Comparative Law, vol 13.3 (September 2009) www.ejcl.org.
- M Donnelly, The Injury of parenthood: the tort of wrongful conception (1997), Northern Ireland Legal Quarterly, Vol 48, No. 1.
- Dr. Alasdair Maclean, McFarlene v Tayside Health Board: A wrongful conception in the House of Lords? Web Journal of Current Legal Issues in association with Blackstone Press (2000) www.ebjcli.ncl.ac.uk/2000/issue3.
- Dr. Alasdair Maclean, An Alexandrian approach to the knotty problem of wrongful pregnancy: Rees v Darlington Memorial Hospital NHS Trust in the House of Lords, Web Journal of Current Legal issues (2004) www.webjcli.ncl.ac.uk/2004/issue3.
- Margaret Datiles, Better off Dead: The Ethical Thicket of wrongful life, wrongful birth and related legal issues, Culture of Life Foundation, (2010) www.culture-of-life.org/index2.
- E. Christian Brugger, To be or Not to Be: The Perverse Coveting of the Not-to-Be, Culture of Life Foundation (2010) www.culture-of-life.org/index2.
- Brenda Daly, Wrongful Birth, Wrongful Conception and the Irish Constitution, Dublin City University, (2005).
- Bunreacht na hEirinn 1937.
- The European Convention on Human Rights 1950.
Adaption of Shakespeares Hamlet by Magdalena Kancler, To be or not to be Born? Civil Liability for damage resulting from birth in a comparative context: Recent Polish and Irish caselaw concerning wrongful birth and wrongful conception, Electronic Journal of Comparative Law, vol 13.3 (September 2009)<http://www.ejcl.org accessed 8 November 2011.
 M Donnelly, The Injury of parenthood: the tort of wrongful conception (1997), Northern Ireland Legal Quarterly, Vol 48, No. 1 p. 10.
 Magdalena Kancler, To be or not to be Born? Civil Liability for damage resulting from birth in a comparative context: Recent Polish and Irish caselaw concerning wrongful birth and wrongful conception, Electronic Journal of Comparative Law, vol 13.3(September 2009)<http://www.ejcl.org accessed 8 November 2011.
 Emeh v Kensington and Chelsea and Westminster Area Health Authority  3AllER 1044 at 1055.
 Gold v Haringey Health Authority  1 QB. 481 at 484.
 McFarlene v Tayside Health Board  3 W.L.R.
 Dr. Alasdair Maclean, McFarlene v Tayside Health Board: A wrongful conception in the House of Lords? Web Journal of Current Legal Issues in association with Blackstone Press <webjcli.ncl.ac.uk/2000/issue3/maclean3.html accessed on 8 November 2011.
 Deirdre Madden, Medicine, Ethics and the Law, Butterworths 2002, p. 512.
 Parkinson v St James and Seacroft University Hospital NHS Trust  3 All ER 97 at 106-107.
 Rees v Darlington Memorial Hospital NHS  2 All ER 177.
 Alasdair Maclean, An Alexandrian approach to the knotty problem of wrongful pregnancy: Rees v Darlington Memorial Hospital NHS Trust in the House of Lords, Web Journal of Current Legal issues < webjcli.ncl.ac.uk/2004/issue3/maclean3.html, accessed 17 November 2011.
 McKay v Essex Area Health Authority  2 All ER 771 (CA).
 Gleitman v Cosgrave, 227A 2d 689 (NJ 1967).
 Margaret Datiles, Better off Dead: The Ethical Thicket of wrongful life, wrongful birth and related legal issues, Culture of Life Foundation, 2010 < http:www.culture-of-life.org/index2.php accessed 8 November 2011.
 Becker v Schwarz (1978) 46 NY 2d 401386
 McFarlene v Tayside Health Board  3 W.L.R; Parkinson v St James and Seacroft University Hospital NHS Trust  3 All ER 97; Rees v Darlington Memorial Hospital NHS  2 All ER 177.
 Re a Ward of Court (withholding medical treatment)(No. 2)  2 IR 79
 Ibid at 156.
 Article 40.3.3 of Bunreacht ne hEirinn 1937.
 AG v X & Ors  ILRM 401.
 Baby O v Minister for Justice  2 I.R 169.
 SPUC (Ireland) Ltd v Grogan  ILRM 350 at 359.
 Article 8 of the European Convention on Human Rights.
 Byrne v Ryan  I.E.H.C 207.