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The value of a loved baby can't cancel out a clear case of medical negligence

By Reg Graycar - posted Friday, 25 July 2003


Nearly 20 years ago, a woman in England gave birth to a fifth, unplanned child after a doctor had negligently performed a sterilisation procedure. In limiting the damages for the negligent medical treatment, the judge said that if she were compensated for the costs of upkeep of the unplanned child, "virtue would go unrewarded; unnatural rejection of womanhood and motherhood would be generously compensated".

He also described the woman as "a motherly sort of woman, nice looking but rather overweight; a good mother, who has all the proper maternal instincts". And he quoted from the Bible's (John 16:21) expression of "joy that a man is born into the world".

Later courts did not agree and some have awarded damages for those costs. Those courts pointed out that compensation for the (modest) costs of bringing up a child who would not have been born but for negligence was consistent with the "policy of the state" to "provide the widest freedom of choice" in respect of family planning.

In Australia, some trial courts had also occasionally made similar modest awards when in 1996, this issue became front page news.

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A woman known as CES had been to a medical clinic, which on five separate occasions had failed to diagnose the fact she was pregnant. By the time it became obvious that she was, it was too late for her to terminate the pregnancy.

She claimed the costs of bringing up her child and after the NSW courts split on this issue, the matter was poised to be decided by the High Court when the parties settled the case.

It took seven more years for the issue to reach the High Court again. Last Wednesday, a narrow majority upheld a claim for about $100,000 to contribute to the cost of rearing a child born as a result of medical negligence.

Not only had the parents not planned to have the child, they had actively planned not to. This is why the mother had undergone a sterilisation procedure. This procedure failed because the doctor had failed to note that she still had one active fallopian tube.

Let's clarify what was not in dispute in this case. The issue of the doctor's negligence was already settled, as was the fact that Mrs Melchior was entitled to damages for the costs of giving birth, and for time off work around that period. The only issue before the High Court was the award of damages for the costs of the child's care.

The main argument against awarding damages for the costs of upkeep is that this commodifies human life, and turns children into things. But the same could be said about the child support system.

As one commentator put it, "No court would be moved by the argument coming from a putative father that he should not be required to provide financial support for the child he has fathered on the grounds that he has bestowed on the mother a priceless blessing".

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The president of the Queensland court from which this appeal came said: "Whilst recognising that only the crustiest of curmudgeons is not warmed by the miracle of new life, I am far from persuaded that the blessing of parenthood should prohibit or even limit a claim for the modest reasonable costs of rearing to majority the baby conceived as a result of medical negligence following a failed sterilisation performed for socio-economic reasons."

Another concern that's been raised is how do we calculate the costs of bringing up a child? In fact, there are many recognised methods of doing so, used by bodies such as the Child Support Agency, the Australian Institute of Family Studies, etc.

An ANU economist, Professor Bruce Chapman, has also calculated the earnings that women forgo by having and raising children.

The law has methods of valuing all sorts of things that do not have obvious means of calculation. Some years ago, the footballer Andrew Ettingshausen was awarded around $100,000 for defamation after a magazine published a (shadowy) photo of his genitalia.

"Reputation", the currency of defamation law, is a much less tangible item than working out how much it costs to feed and clothe a child.

To paraphrase the judges in this case, it is not the child who is unwanted; the child of course has become a dearly loved member of the family.

But the price of the doctor's negligence is that the family now has costs and responsibilities it would not have had but for that negligence. To allow that to go unremedied would go against the policy of freedom of choice about family planning that is central to our community's values.

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This article was first published in The Sydney Morning Herald on 21 July 2003.



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About the Author

Professor Reg Graycar is Associate Dean (Postgraduate Research) in the Faculty of Law at the University of Sydney.

Other articles by this Author

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Melchior Judgement
University of Sydney
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