A wrongful birth claim describes a situation where a couple or parents take legal actions or make claims for the costs incurred as a result of a pregnancy and birth of a child born as a result of negligence and nor originally planned. Wrongful birth compensation claims may also include claims for damages such as inconvenience, pain and suffering.
A wrongful birth is defined as a legal concept where the parents of a child may make claims and be awarded compensation if they are able to establish and prove beyond all reasonable doubt that the birth of their child was not intended or pre-planned but resulted due to the negligence of their health care provider.
The NHS however defines wrongful birth as a clinical negligence claim where parents of a child born with birth defects make claims to allege that they received negligent treatment or their healthcare provider failed to give them proper advice which deprived them of the chance to avoid conception or terminate the pregnancy.
A look at medical malpractice UK statistics on wrongful birth claims shows that the NHS received 75 wrongful birth compensation claims between 2015 and 2018. However, all of these were settled without going to a trial. In 2019/20 year, there were 13 wrongful birth claims filed against the NHS while 17 claims were filed relating to unwanted pregnancy. The total amount paid by the NHS in damages, legal costs and claimant compensation for these claims stood at £34.79m.
Wrongful Birth Vs Wrongful Life
While discussing with potential clients, we have been frequently asked the difference between wrongful birth and wrongful life.
One thing you have to note is that while a claim for wrongful birth is brought by the parents, a claim for wrongful life is filed by a child alleging that a health care provider was negligent and it causes them to be born with birth defects or other disabilities.
Therefore, wrongful pregnancy or wrongful conception cases are filed by parents who gave birth to a healthy but unwanted child following negligent advice, failed sterilization procedure (laparotomy, laparoscopy or vasectomy), or abortion procedure, claiming damages.
A claim for wrongful birth is on the other hand filed by parents who allege that they gave birth to a child with life-altering birth defects or disabilities as a result of negligence.
Different Claims Associated With Birth Defect & Wrongful Birth Claims
There are different claims our specialist Birth Injury Solicitors and Wrongful Birth Claims Solicitors can undertake on your behalf as related to wrongful birth claims and birth defects.
- Wrongful Birth Compensation Claim
- Medical Negligence Childbirth Claims
- Sterilization Failure Compensation Claims
- Failed Operation Claims
- Child Birth Defects and Birth Injury Claims
- Medical Negligence Stillbirth Compensation Claims
Our specialist negligence claims solicitors have the expertise in these claims and more, ensuring that you are provided with the best possible legal representation so that you will be deservedly compensated for the wrong done to you.
Our solicitors are accredited with relevant industry bodies such as the Action against Medical Accidents panel (AvMA) and the Law Society’s panel for clinical negligence solicitors. You therefore can expect nothing short of professional legal representation from our friendly, approachable, understanding and well experienced solicitors.
Negligence leading To Wrongful Birth Claims
There are two major reasons why a couple may make wrongful birth claims against their healthcare provider. These are
- Failed sterilisation/vasectomy
- Failure to give proper advice during prenatal stage or warn about a specific disability
Parents may make wrongful birth claims if a sterilization procedure or vasectomy procedure failed resulting in an unwanted pregnancy. In the case the claimant has to show that they had no intention of having a child and if the procedure was carried out properly, the child would not have been conceived.
The male sterilization also known as vasectomy describes the process of cutting or severing the tubes that carry sperm from the testicles so that sperm is no longer contained in the semen thus making the man sterile. This is considered to be a permanent form of male sterilization but sometimes it can be surgically reversed or even self-reversing.
When the male is still fertile even after this procedure solely because the procedure was not properly done, then the couple can make a claim. The chances of vasectomy failing according to statistics is 1 out of 100.
Female sterilization on the other hand requires that the fallopian tubes through which the eggs travel from the ovaries to the uterus are either cut or blocked.
In claiming for the cost of a child due to wrongful pregnancy or wrongful birth, the couple may claim for the emotional and physical stress, distress and pain of going through an unwanted pregnancy, loss of earnings and other financial losses.
Failure To Give Proper Advice During Prenatal Stage Or Warn About A Specific Disability
Parents may also make a claim for negligent conception advice. This means that they weren’t warned that their child will be born with some form of disability or life-changing defect denying them the chance to terminate the pregnancy.
Failure to warn the couple may also be as a result of lack of required skill or experience of the medical professional, failure to interpret scan results correctly or failure to carry out the required tests and scans.
Examples of some birth defects a child may be born with include;
- Spina bifida
- Club feet
- Hole in the heart
- Down’s syndrome
In this case, the parents can also claim for the cost of bringing up the child in addition to claims for emotional distress, costs of assistive devices and special equipment, home adjustments, etc.
How Do I Prove My Wrongful Birth Claim?
There are key issues that must be established to prove a wrongful birth claim. These are categorised into Liability and Causation. These are the elements of a wrongful birth claim.
- Establishing liability in this case requires that you show that the medical professionals owed you a duty of care but failed in doing so by treating you negligently. This means that you are establishing that the treatment you receive fell below the standards of a professional healthcare provider in that field.
- Establishing causation simply means that you have to link the negligence to the wrongful pregnancy or wrongful birth. You have to show that their failure to warn you of the birth defect your child will be born with prevented you from terminating the pregnancy or that you have been put through an unwanted pregnancy or childbirth because an earlier sterilization procedure failed as a result of medical negligence.
You cannot only establish liability and be successful with your claims without also proving causation. It is therefore very important to show evidence to prove your claims. Your evidence will show that at no time did you receive information about the abnormalities of your unborn child or warned about any genetic risks to your child and that if you had been informed you would have terminated or avoided the pregnancy.
It is also important that your evidence either by witness statements or some form of written agreement shows that you had decided not to have a child and that you did not just come up with that decision now because the child has disabilities.
Sometimes, statistics can help a judge to make a decision in favour of the parents if there are useful statistics showing the number of pregnancy terminations after a certain diagnosis of a particular diagnosis is made. Additionally, an expert in fetal medicine can give an opinion on what most parents decide when some defects are diagnosed in their unborn child.
If on the balance of probabilities, it could not be proven that the parents would have chosen to terminate or avoid the pregnancy had they been informed, then the case cannot be successful.
How We Can Help To Prove Your Wrongful Birth Claims
As expert Wrongful Birth Compensation Claims Solicitors, we know what it entails and how difficult it can be to prove your wrongful birth claims. Therefore, we engage a number of medical experts to supply us with the information we need to prove your claims.
- Where the case bothers on failure to warn or advise parents of risks such as genetic risks to their unborn child, we would require evidence from a geneticist. We would also meet with a fetal medicine expert or an obstetrician to provide us with evidence of what patients do in the face of a genetic risk to their child; we would also ask for and source for statistics to show pregnancy terminations after such diagnosis is made.
If the obstetrician would have referred the patient to an expert geneticist, then the evidence from the geneticist will be vital to prove your claims.
- Where there is a failure to diagnose fetal abnormalities during an ultrasound scan or interpret the results of the ultrasound, we will speak with an expert sonographer and an obstetrician for evidence.
- We would also take similar steps if the claims stem from a failed sterilisation procedure.
McFarlane Vs Tayside Health Board
Before the year 2000, it was possible to recover the costs of a child upbringing in a successful claim for wrongful birth. But in the McFarlane v Tayside Health Board , the House of Lords reversed it deciding that it was no longer possible to recover the maintenance costs of a child’s upbringing.
The claims made were on recovering the costs of bringing up a child with no health defects following a failed sterilization procedure. However, in the case of a child with a disability, a different position is proposed.
What Damages Can I Claim For My Wrongful Birth Claim?
There are different damages that you can claim while making your wrongful birth claims. For instance, if a child suffered congenital disabilities following negligent treatment to the mother during her pregnancy, she can make birth injury claims.
Also, an individual can make personal injury claims for an unwanted pregnancy. Also, you may make sterilization failure compensation claims and wrongful pregnancy claims where your sterilization procedure failed as a result of negligence leading to an unplanned pregnancy.
General damages which you can claim include pain, suffering, loss of amenity, emotional distress, loss of ability to control family size, etc.
Special damages which you can claim include financial losses incurred as a result of the pregnancy and birth, loss of earnings during pregnancy, maintenance costs of child upbringing where the child is disabled, costs of medical treatments, rehabilitation, purchase of special equipment, costs of hiring caregivers and costs of house adjustments to suit the child’s needs among others.
Noteworthily, the House of Lords in Rees v Darlington Memorial Hospital NHS Trust  established a ‘conventional award’ of about £15,000 to parents for the loss of their ability to control their family size following medical negligence. This does not include the sum to be paid to the mother as damages for the unwanted pregnancy. This amount paid is not to be seen as compensation but rather to show that they have accepted their wrongdoing.
Can I Get Pregnant After Being Sterilised For 15 Years?
It is possible to get pregnant after being sterilised after 15 years if you have not yet attained menopause and your fallopian tubes rejoin naturally. This process of rejoining is known as recanalization and is one of the risks of female sterilization. If this is the case, it cannot be seen as caused by negligence.