From McFarlane to Melchior and Beyond: Love, Sex, Money and Commodification in the Anglo-Australian Law of Torts
Torts Law Journal, Vol. 12, No. 2, pp. 128-154, 2004
27 Pages Posted: 1 Mar 2009
Date Written: 2004
Abstract
This article seeks to place the recent Anglo-Australian case law on wrongful conception actions within a political context. It takes as its specific focus the recoverability of child-rearing damages in wrongful conception negligence actions. The political context within which the recent case law is situated is the gendered construction of the family and the denial of female reproductive autonomy. It is argued that although the High Court of Australia's recent consideration of the matter in Cattanach v Melchior affirmed the right of plaintiffs to recover damages for this head of loss, the gendered policy reasoning which led the House of Lords in McFarlane v Tayside Health Board to deny the award of child-rearing damages is still evident in the reasoning of the High Court. It is argued that in the Australian context, where State legislatures such as Queensland and New South Wales have already begun to circumscribe the rights which Melchior gives to plaintiffs, it is more important than ever to articulate the feminist case for child-rearing damages.
Keywords: Wrongful conception, child-rearing damages, reproductive autonomy, Cattanac v Melchior
Suggested Citation: Suggested Citation