Documentation:Torts/Negligence Unborn children

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Negligence concerning unborn children
Cases of negligence concerning unborn children are generally brought against health care providers and may be advanced either by the parent or the child. These claims fall into one of several categories:[1] claims by a parent of wrongful conception,[2] claims by a parent of wrongful birth,[3] claims by a parent of wrongful in-vitro fertilization,[4] claims by a child of wrongful pre-natal birth,[5] and claims by a child of wrongful life.[6] As with any negligence claim, a plaintiff must prove that: the defendant owed them an existing or novel duty of care, the duty was breached, the plaintiff suffered damage, and the defendant's negligence was the cause of the damage in fact and in law.[7]

Parent claim of wrongful conception

Medical negligence and unborn children
In this episode of Kings Chambers Podcast, the hosts discuss several key cases of negligence concerning unborn children,[8] including McFarlane v. Tayside Health Board,[9] Rees v. Darlington Memorial Hospital NHS Trust,[10] and Khan v. Meadows.[11]

Wrongful conception cases are premised on a claim that but for a doctor's negligent performance of a sterilization procedure, the mother would not have conceived. Plaintiffs often sue to recover costs associated with raising the unplanned child.

Suing for costs of a healthy baby

Courts have ruled that a parent cannot recover for the costs associated with raising a normal, healthy child. In McFarlane v. Tayside Health Board, a couple sued the Health Board alleging they had been negligently advised that the husband was infertile following a vasectomy operation. Believing this to be true, the couple engaged in intercourse and unexpectedly conceived a child together. They sought to recover the costs of maintaining that child. The House of Lords rejected the claim, holding that the law should treat a healthy baby as a blessing and not a detriment. However, the plaintiffs were still awarded £5,000 in damages for the loss of their autonomy.[12]

Suing for costs of a baby's disabilities

A different conclusion has been reached in cases where the unplanned child is not healthy. In Parkinson v. St James and Seacroft University Hospital NHS Trust, the mother had received a negligently performed sterilization procedure and subsequently gave birth to a child with disabilities that the mother believed would be lifelong.[13] The Court of Appeal upheld the lower court's decision that while the mother could not recover the basic costs of raising the unplanned child, she could recover the additional costs of providing care for the child's disabilities.[14]

Suing for costs of a mother's disabilities

A couple years later, yet another variant of the unplanned child claim came before the House of Lords, this time involving the parent's disability. In Rees v. Darlington Memorial Hospital NHS Trust, the plaintiff had undergone a sterilization procedure because she believed her visual disability rendered her unfit to be an effective caretaker.[15] The procedure was performed negligently, and she gave birth to a healthy baby. The House of Lords overturned the Court of Appeal's holding that the plaintiff was entitled to recover the additional costs attributable to her disability, but it awarded her a lump sum on the grounds that she still suffered a legal wrong as a result of the defendant's negligence and lost the opportunity to live her life in the way that she had planned.[16]

Referencing the decision in Parkinson, Lord Bingham made the following points:

(1) While I have every sympathy with the Court of Appeal’s view that Mrs Parkinson should be compensated, it is arguably anomalous that the defendant’s liability should be related to a disability which the doctor’s negligence did not cause and not to the birth which it did.

...

(3) It is undesirable that parents, in order to recover compensation, should be encouraged to portray either their children or themselves as disabled. ...

(4) In a state such as ours, which seeks to make public provision for the consequences of disability, the quantification of additional costs attributable to disability, whether of the parent or the child, is a task of acute difficulty. This is highlighted by the inability of the claimant in this appeal to give any realistic indication of the additional costs she seeks to recover.[17]

The point on the difficulty of calculating damages was emphasized in the Canadian case PP v. DD, where the father of an unplanned, healthy child sued the mother for the emotional and economic costs of raising the child.[18] The Ontario Court of Appeal noted that calculating the plaintiff's purported loss is especially challenging where the claim is brought by the father, someone who shares in the legal and moral responsibility of maintaining the child.[19]

Parent claim of wrongful birth

Ultrasound image of a fetus in the womb.

Another legally and morally fraught category of claims concerning unplanned children, referred to as "wrongful birth" cases, relates to a plaintiff's assertion that they would have terminated the pregnancy had it not been for the defendant's negligent act.[20][21]

In Arndt v. Smith, the plaintiff contracted chickenpox, and the fetus was injured by the virus during the pregnancy.[22] The plaintiff alleged that if her doctor had properly advised her of the risk her condition posed to the fetus, she would have had an abortion.[22] She sued for the cost of raising her child.[22] However, the plaintiff's claim failed on causation. The Supreme Court of Canada held that the plaintiff could not prove on a balance of probabilities that she would have actually opted to terminate the pregnancy.[23]

The central issue of the causation analysis was which counterfactual the Court should apply: what the plaintiff would have done had she been properly informed, or what a hypothetical reasonable person would have done?[24] Justice McLachlin, concurring in part, found that the proper approach is to evaluate the the plaintiff's assertion of what she would have done by reference to her circumstances at the time she would have made her choice.[25] In other words, the test incorporates both subjective and objective elements. A judge should ask what the plaintiff in question would have done, but the reasonableness of her choice must be considered with regard to objective evidence, such as her attitudes at the time of the decision and the medical advice she would have received if the doctor had discharged the duty of care.[26]

The Court's majority also emphasized that the test must still account for the plaintiff's own fears and beliefs because "[i]t is important to include some subjective aspects in the assessment of what the reasonable person in the position of the plaintiff would have done if all the risks had been disclosed."[27] With this principle in mind, the Court was of the view that a reasonable person in the plaintiff's position would not have chosen to have an abortion simply because of a small risk posed to the fetus by the chickenpox virus.[28]

Parent claim of wrongful in-vitro fertilization

A blue microscopic image of intracytoplasmic sperm injection (in-vitro fertilization) in why a sperm is medically injected into an ovum.
In-vitro fertilization.

Medical negligence in performing in-vitro fertilization may give rise to tricky situations in which the result is misaligned with the patient's expectations and the contractual terms of the procedure.

The challenge with upkeep costs

An example that highlights the legal and moral difficulties surrounding a claim of wrongful in-vitro fertilization is the Singaporean case of ACB v. Thomson Medical Pte Ltd.[29] There, the plaintiff underwent in-vitro fertilization to conceive a child with her husband. It was later discovered that her ovum had been fertilized by sperm from a stranger rather than her husband. She sued in tort and in breach of contract, seeking to recover the costs of raising the healthy baby ("upkeep costs").[30] She argued that if it had not been for the alleged negligence, this baby would not have been born at all.[31]

The Court of Appeal of the Republic of Singapore was faced with a dilemma: If the Court refused to allow upkeep costs, the plaintiff would be left with a relatively modest award in comparison to the wrong done to her. If the Court allowed upkeep costs, that would be offensive to the baby's worth as a human being, suggesting that her existence would be a continuing source of loss to her mother.[32]

After considering foreign authorities, the Court ultimately decided not to award upkeep costs based on two closely related reasons:

(a) The obligation to maintain one’s child is an obligation at the heart of parenthood and cannot be a legally cognisable head of loss.

(b) To recognise the upkeep claim would be fundamentally inconsistent with the nature of the parent-child relationship and would place the Appellant in a position where her personal interests as a litigant would conflict with her duties as a parent.[33]

A cognizable loss

Still, the legitimacy of the plaintiff's loss could not be ignored. The true loss in this case was the plaintiff's injury to her interest in "genetic affinity", that is, her desire to have a child related to herself and her husband.[34] Her autonomy was damaged as she lost the ability to make her own reproductive choices and the opportunity to build the family she envisioned.[35] The Court importantly held that the plaintiff's loss of "genetic affinity" was cognizable at law and should be recognized as a legitimate head of damages.[36]

Damages

While the Court declined to award the mother upkeep costs, it awarded her general damages to compensate for the injury she suffered to her interest in "genetic affinity".[37] Interestingly, the Court still ascertained the sum of general damages by reference to 30% of the upkeep costs, an amount it deemed "properly reflects sufficiently the seriousness of the Appellant’s loss and is just, equitable, and proportionate in the circumstances of the case."[38]

Child claim of wrongful pre-natal birth

It is considered well-established case law that health care providers owe a duty of care to infants prior to birth.[39] An infant may sue for injury sustained as a result of negligence during labour and delivery, though they only gain the legal status to sue after birth,[39] and "damages are assessed only as at the date of birth”.[40]

In Liebig v. Guelph General Hospital, the infant plaintiff sued the hospital and healthcare providers for negligent maternal-fetal care immediately before and during the delivery process. The plaintiff suffered hypoxic-ischemic encephalopathy in the course of his birth, which led to the development of cerebral palsy.[41]

The hospital argued that the cases of Bovingdon v. Hergott and Paxton v. Ramji required courts to depart from precedent and adopt the position that there is no duty of care owed to an infant plaintiff in relation to the delivery process.[42] In Bovingdon, the doctor prescribed the mother a fertility drug that increased the risk of conceiving twins. She became pregnant with twins, and they were born prematurely with severe disabilities.[43] In Paxton, the doctor prescribed a drug intended to treat the mother's acne, but the drug could cause birth defects in a fetus if the mother conceived while taking it. The mother later gave birth to a child who had developed disabilities due to being exposed to the drug in-utero.[44]

The Ontario Court of Appeal ruled that Bovingdon and Paxton were not applicable here because they involved alleged acts of negligence that had occurred before the conception of any child.[45] The key takeaway from those decisions is that a health care provider does not owe a duty of care to a future child if the alleged negligence took place prior to conception.[45] The facts of Liebig, however, fell into the category of labour and delivery cases in which a duty of care is clearly owed to the infant.[46]

Child claim of wrongful life

In the news
UK decision recognizes potential wrongful life claim
The High Court in London ruled that a wrongful life claim could be brought by a woman born with spina bifida.[47] The woman had alleged that had her mother's doctor not given her mother negligent advice, she would not have been born.[48] Plaintiff Evie Toombes speaks about her decision to sue here.[49]

In contrast to Canadian case law, this case suggests that physicians in the UK can be liable for negligent pre-conception advice.

A claim of wrongful life can arise when a child born with birth defects contends that they would not have been born if it had not been for the doctor's negligence.[50] This category of cases raises deeply challenging questions of morality (i,e. "whether a life is worth living") and philosophy (i.e. "whether it is possible to compare a state of existence with one of non-existence").[51]

Such was the case in Florence v. Benzaquen, where a doctor prescribed a patient fertility drugs that allegedly increased the risk of conceiving multiple fetuses. The mother conceived triplets who were subsequently born with severe disabilities. The claim was brought by the parents as well as the children, with the children asserting that they had brought the claim "in their own right".[52] They argued that the doctor owed both their mother and them a duty of care, a duty he breached by prescribing a drug that could harm the mother and them, or by failing to fully inform their mother of the risks associated with the drug so that she could make an educated decision about taking it.[53]

The Ontario Court of Appeal decided Florence by following the Canadian case law of Bovingdon v. Hergott, Paxton v. Ramji, and Liebig v. Guelph General Hospital, all three of which reinforce the principle that a doctor does not owe a duty of care to a future child if the alleged negligence occurred prior to the child's conception.[54]

Policy considerations

The Court in Florence found that even though the Anns/Cooper analysis for a duty of care owed by a doctor to an unconceived child would likely meet the requirement of reasonable foreseeability, such a duty would ultimately be negated by policy concerns.[55] For example, a doctor would be placed in an impossible position with conflicting interests if they owed a duty of care to their patient and to the patient’s future children.[56] The motions judge had also referenced the case of Lacroix (Litigation Guardian of) v. Dominique, where the Manitoba Appeal Court found that it would be contrary to public policy to recognize a duty of this sort because it would be impossible to assess damages.[57]

Discussion questions

  • What was the appropriate counterfactual scenario to help determine whether the doctor was a but-for cause of Arndt’s daughter’s being born with congenital injuries?
  • In cases of careless professional failure to advise, what is problematic about applying a pure subjective approach to causation? What is problematic about not undertaking a subjective enquiry?
  • In what sense is carelessly caused pregnancy a tortious injury? What jurisprudential, ethical and practical challenges arise in assessing the damage flowing from involuntary parenthood?
  • Do you agree with how the Court in ACB v. Thomson Medical Pte Ltd[29] determined damages for injury to “genetic affinity”?
  • What jurisprudential, ethical and practical considerations arise in determining whether a physician owes a duty of care to future children for alleged negligence that occurred prior to conception?


  1. ↑ Todd, Stephen (2005). "Wrongful Conception, Wrongful Birth and Wrongful Life". Sydney Law Review. 27: 525.
  2. ↑ See e.g. Macfarlane and Another v. Tayside Health Board (Scotland), [1999] UKHL 50 (BAILII); Parkinson v. St James and Seacroft University Hospital NHS Trust, [2001] EWCA Civ 530; Rees v. Darlington Memorial Hospital NHS Trust, [2003] UKHL 52 (§19.10.1.1).
  3. ↑ See e.g. Arndt v. Smith, 1997 CanLII 360 (SCC) (§19.10.2.1).
  4. ↑ See e.g. ACB v. Thomson Medical Pte Ltd, [2017] SGCA 20 (§19.10.5.1).
  5. ↑ See e.g. Liebig v. Guelph General Hospital, 2010 ONCA 450 (§19.10.3.1).
  6. ↑ See e.g. Florence v. Benzaquen, 2021 ONCA 523 (§19.10.4.1); Lacroix (Guardian of) v. Dominique, 2001 MBCA 122.
  7. ↑ Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 (§17.1.2).
  8. ↑ Kings Chambers Podcast (August 2019). "Kings Chambers Debrief Episode 8 - Wrongful Birth". Apple Podcasts.
  9. ↑ Macfarlane and Another v. Tayside Health Board (Scotland), [1999] UKHL 50 (BAILII).
  10. ↑ Rees v. Darlington Memorial Hospital NHS Trust, [2003] UKHL 52 (§19.10.1.1).
  11. ↑ Khan v. Meadows, [2021] UKSC 21 (§19.4.3.2),
  12. ↑ Macfarlane and Another v. Tayside Health Board (Scotland), [1999] UKHL 50 (BAILII).
  13. ↑ Parkinson v. St James and Seacroft University Hospital NHS Trust, [2001] EWCA Civ 530 at paras 2–10.
  14. ↑ Parkinson v. St James and Seacroft University Hospital NHS Trust, [2001] EWCA Civ 530 at paras 1, 51, 95.
  15. ↑ Rees v. Darlington Memorial Hospital NHS Trust, [2003] UKHL 52 (§19.10.1.1) at para 1.
  16. ↑ Rees v. Darlington Memorial Hospital NHS Trust, [2003] UKHL 52 (§19.10.1.1) at para 8.
  17. ↑ Rees v. Darlington Memorial Hospital NHS Trust, [2003] UKHL 52 (§19.10.1.1) at para 9.
  18. ↑ PP v. DD, 2017 ONCA 180 (§6.3.2.2).
  19. ↑ PP v. DD, 2017 ONCA 180 (§19.10.1.2) at paras 53-54.
  20. ↑ Parkinson v. St James and Seacroft University Hospital NHS Trust, [2001] EWCA Civ 530 at para 46.
  21. ↑ Ramey, E. Travis (2025). "Wrongful Birth After Dobbs and the Limits of Tort Law in Areas of Dissensus". 103 Neb. L. Rev. 459.
  22. ↑ 22.0 22.1 22.2 Arndt v. Smith, 1997 CanLII 360 (SCC) (§19.10.2.1) at para 31.
  23. ↑ Arndt v. Smith, 1997 CanLII 360 (SCC) (§19.10.2.1) at para 72.
  24. ↑ Arndt v. Smith, 1997 CanLII 360 (SCC) (§19.10.2.1) at para 39.
  25. ↑ Arndt v. Smith, 1997 CanLII 360 (SCC) (§19.10.2.1) at para 42.
  26. ↑ Arndt v. Smith, 1997 CanLII 360 (SCC) (§19.10.2.1) at paras 44, 55.
  27. ↑ Arndt v. Smith, 1997 CanLII 360 (SCC) (§19.10.2.1) at paras 44, 55.
  28. ↑ Arndt v. Smith, 1997 CanLII 360 (SCC) (§19.10.2.1) at para 18.
  29. ↑ 29.0 29.1 ACB v. Thomson Medical Pte Ltd, [2017] SGCA 20 (§19.10.5.1).
  30. ↑ ACB v. Thomson Medical Pte Ltd, [2017] SGCA 20 (§19.10.5.1) at para 3.
  31. ↑ ACB v. Thomson Medical Pte Ltd, [2017] SGCA 20 (§19.10.5.1) at para 31.
  32. ↑ ACB v. Thomson Medical Pte Ltd, [2017] SGCA 20 (§19.10.5.1) at para 4.
  33. ↑ ACB v. Thomson Medical Pte Ltd, [2017] SGCA 20 (§19.10.5.1) at para 86.
  34. ↑ ACB v. Thomson Medical Pte Ltd, [2017] SGCA 20 (§19.10.5.1) at para 127.
  35. ↑ ACB v. Thomson Medical Pte Ltd, [2017] SGCA 20 (§19.10.5.1) at para 130.
  36. ↑ ACB v. Thomson Medical Pte Ltd, [2017] SGCA 20 (§19.10.5.1) at para 135.
  37. ↑ ACB v. Thomson Medical Pte Ltd, [2017] SGCA 20 (§19.10.5.1) at para 210.
  38. ↑ ACB v. Thomson Medical Pte Ltd, [2017] SGCA 20 (§19.10.5.1) at para 150.
  39. ↑ 39.0 39.1 Liebig v. Guelph General Hospital, 2010 ONCA 450 (§19.10.3.1) at paras 6–7.
  40. ↑ Liebig v. Guelph General Hospital, 2010 ONCA 450 (§19.10.3.1) at para 7 citing Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), 1997 CanLII 336 (SCC) at para 21.
  41. ↑ Liebig v. Guelph General Hospital, 2010 ONCA 450 (§19.10.3.1) at para 2.
  42. ↑ Liebig v. Guelph General Hospital, 2010 ONCA 450 (§19.10.3.1) at para 9.
  43. ↑ Bovingdon v. Hergott, 2008 ONCA 2 at paras 12–16.
  44. ↑ Paxton v. Ramji, 2008 ONCA 697 at paras 6–9.
  45. ↑ 45.0 45.1 Liebig v. Guelph General Hospital, 2010 ONCA 450 (§19.10.3.1) at para 11.
  46. ↑ Liebig v. Guelph General Hospital, 2010 ONCA 450 (§19.10.3.1) at para 16.
  47. ↑ Toombes v. Mitchell [2020] EWHC 3506.
  48. ↑ Dollimore, Laurence (1 December 2021). "Spina bifida showjumper WINS landmark legal case over her 'wrongful conception': Evie Toombes, 20, who sued her mother's GP claiming she should never have been born could win MILLIONS in damages". Daily Mail.
  49. ↑ This Morning (2 March 2022). "The Woman Who Sued Her Mother's GP For Being Born | This Morning". Youtube.
  50. ↑ Florence v. Benzaquen, 2021 ONCA 523 (§19.10.4.1) at para 15.
  51. ↑ ACB v. Thomson Medical Pte Ltd, [2017] SGCA 20 (§19.10.5.1) at para 30.
  52. ↑ Florence v. Benzaquen, 2021 ONCA 523 (§19.10.4.1) at para 5.
  53. ↑ Florence v. Benzaquen, 2021 ONCA 523 (§19.10.4.1) at paras 5, 65.
  54. ↑ Florence v. Benzaquen, 2021 ONCA 523 (§19.10.4.1) at para 87.
  55. ↑ Florence v. Benzaquen, 2021 ONCA 523 (§19.10.4.1) at para 89.
  56. ↑ Florence v. Benzaquen, 2021 ONCA 523 (§19.10.4.1) at para 73.
  57. ↑ Florence v. Benzaquen, 2021 ONCA 523 (§19.10.4.1) at para 17.
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