ABSTRACT
The stories of parents bringing wrongful conception actions against health authorities render familiar allegations – clinical mishaps ranging from negligently performed vasectomy or sterilisation, to the provision of incorrect test results following postoperative testing. Claiming that in the absence of such negligent treatment the child would not have been born, parents have typically sought to claim damages for the pain and suffering of the physical events of pregnancy and childbirth and for the costs of child-rearing. While English law has traditionally permitted both claims, the question of whether parents should be entitled to the costs of child-rearing has proved controversial. The initial reaction to such a claim was outright rejection. In Udale v Bloomsbury Area Health Authority [1983] 2 All ER 522, Jupp J denied damages under this head on the grounds of public policy, observing inter alia, that the birth of a child ‘is a blessing and an occasion for rejoicing’ (p 531). Although not repudiating the ‘child as a blessing’, Udale was soon overruled by Thake v Maurice [1985] 2 WLR 215. In allowing damages for child-rearing, Peter Pain J preferred to address the issue in economic terms: ‘. . .every baby has a belly to be filled and a body to be clothed’ (p 230). And this more pragmatic line of reasoning was followed by the Court of Appeal in Emeh v Kensington, Chelsea and Westminster Area Health Authority [1985] QB 1012. Despite occasional expressions of ‘surprise’ that English law should permit such recovery (see for example, Jones v Berkshire Area Health Authority
(unreported, 2 July 1986), Gold v Haringey Health Authority [1988] QB 481, and Allen v Bloomsbury [1993] 1 All ER 651), it seemed that Emeh had settled the matter. As Mary Donnelly considered at the time, ‘in the unlikely event of the House of Lords overruling any of these decisions, the policy debate in England appears to be concluded’ (1997: 16); but the gates of policy were about to reopen in the case of McFarlane v Tayside Health Board [2000] 2 AC 59.
