Health, Disability & Parental Interests: Adopting a Contextual Approach in the Reproductive Torts

Abstract

Illustrating the limitations of the notion that caring for a disabled child is harmful and sufficiently distinctive from the (judicially viewed harmless) experience of caring for non-disabled children, this article takes issue with the differential outcomes of the reproductive torts where success pivots upon the presence or absence of disability. Since caring for any child must be seen as bringing about a significant caring responsibility, if there is a difference in the burden that results, this will be a matter of extent, not kind. Also taking a critical view of the House of Lords recent determination of Rees v Darlington Memorial Hospital, this article notes that nor can a common approach to all claims of wrongful conception and birth offer an equitable alternative. Ignoring context and treating all reproductive outcomes equally for the purposes of compensation is certain to result in manifest unfairness. The thrust of the argument is that it is essential that the law embrace a more contemporary and contextual approach, based on the value of reproductive autonomy.

Keywords: Health, disability, parental interests, wrongful conception, wrongful birth, torts, tort, McFarlane v Tayside, Rees v Darlington, reproductive autonomy

JEL Classification: I19, K10, K13, J13, J16, J18, J71, J78