Wrongful birth is the term the courts use to describe a claim that arises out of the birth of a child who would not have been born without negligent treatment, usually to the child's parents. The claim belongs to the parents, usually primarily to the mother because she is more likely to be the person who received treatment.
Wrongful birth claims fall into two main categories. The first is failed sterilisation or failed vasectomy. The second arises where parents have not been warned that a child will be born with a specific disability, and if they had been warned would have terminated the pregnancy. It may include such things as wrong advice about the risks of a child being born with sickle cell disease, or simply forgetting to offer screening for Down's Syndrome to a woman at risk.
You may have a claim in clinical negligence if your sterilisation has not been successful and has resulted in an unwanted pregnancy. Your potential claim is for what is termed a 'wrongful birth' in the sense that the failed sterilisation will have resulted in the birth of a child that would otherwise have not been conceived.
You will be compensated for the physical and emotional pain, incapacity and distress of an unwanted pregnancy and labour and possible additional re-sterilisation procedure. This is usually at about £5,000, although it could be more if the pregnancy or labour was unusually complicated or you experienced post-natal depression. You will also be entitled to compensation if you decide to proceed with a termination. You will be entitled to claim for any financial losses, including loss of earnings, resulting from the unwanted pregnancy. However, following the decisions in the House of Lords in McFarlane v Tayside Health Board and Rees v Darlington Memorial Hospital you will not be compensated for the cost of bringing up any child born as a result of the failed sterilisation, unless that child is disabled. You may be entitled to a payment of about £15,000 in recognition of the fact that you have lost the right to limit the size of your family. We will need to know about your individual situation before we can advise what damages you may be able to recover.
You and your partner may have a claim in clinical negligence if your vasectomy has not been successful and has resulted in an unwanted pregnancy. If liability can be established you and your partner's potential claim will be similar to those claims arising from failed sterilisations.