CONGENITAL DISASILITY, MEDICAL & 'WRONGFUL LIFE' ACTIONS: THE LIMITS OF LIABILITY IN ANGLO-AlMERICAN LAW

Dany Merkel

A thesis submitted in conformity with the requirements for the degree of Master of Laws Graduate Department of the Faculty of Law University of Toronto

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Dany Merkel

Master of Laws, 1999 Graduate Department, Faculty of Law University of Toronto

This Thesis addresses the difficult legd and conceptual issues caised by the 'wrongful life' in Anglo-Amencan tort law. 'Wrongful iife' actions are brought on behalf of congenitally disabled children aileging medical negligence b y a defendant p hysician for

failing to avail the child's parents of the opportunity to avoid the child's conception andl or birth. Because the child in such a case never had the chance to be born 'healthy' or 'whole',

her cornplaint tends to be characterised by the Courts as a claim for negligently allowing her to be born, a daim for 'wrongful entry into life' or 'wron,@l life'.

This Thesis argues that the 'wronghil life' label is emotive and distorts the mie nature of the underlying claim, which is arguably akin to a regular medical action for prenatai injury. A 'person affecting' conception of harm, which pady underlies and explains the judicial reluctance to allow 'wrongfbl life' actions, is considered in an effort to better understand the true Iimits of liability in Anglo-American tort law. I would iike to thank my supervisor, Professor Bernard Dickens, my second reader, Professor Bruce Chapman and my teacher and mentor during the year, Professor William Harvey, all of whom were generous with their time notwithstanding very busy schedules. CHAPTER 1: THE DEVELOPMENT OF THE CEILD'S RIGHT OF ACTION FOR NEGLIGENTLY INFLICTED PRENATAL INJURY ~.-n--*~~-.~*~n--~.~-nn-**n-~~-~*~.-~~Ht~n~~~n.m.mn*nn~11 1. I THEEARLY & THE REQUIREMENTOFLIVE B IRTH: WALKER,D~ETRICH & AWRE. ..., 1 1 1 -2 DEEMINGLEGAL PERSONALITYAT THE TIMEOF THE WRONG:MOWREN, ~"RAMWA YS ., .,.. ,...., ,..,,,....,, 15 1.3 THE VIABILITYREQUIRCMEN~ IN AMERICA& A RIGHTTOBEGIN LIFE WïTH A SOUNDBODY & MWD: BONBRESTV. Kan ...... ,,,-...----..-----..-~-..-..-.-...... -.- ...... 16 1 -4 THE UNBORNCHILD AS A FORESEEABLEPLA~: WATT V. RAMA,DUVAL V. SEGUIN& BURTONV. ~SUNGTONHA- ...-.,.,...... ,,., .--. .-.---. ..-.--.- --- ...... - . - ...... - 1 8 15 THESTATUS OFME UNBORN CHILD & 'WRONGFULDEATH' BEFORE BIRTH ...... 22 1 -6 ANALYS IS OF THE FORESEEABLEPLAINTIF APPROACH ...... -.--.-..--.-..---.24 1.7 CONTINUINGWRONGS & THE EXTENSIONOF LIABW TO PRE-CONCEPTIONTORTS: JORGENSEX

RENS&OW&BERG~ESER .,,...... ,.....-.. EEEEEE.E.EEEEE..EEE.EEEE...,...... -...-..----...... -...... 27 1.8 THE'NO DUN' RULE & SUCCESSNEGENERATIONCLAMS: AUAU & THE 'DES GRANDDAUGHTER'

CHAPTER 2: THE 'WRONGFUL LIFE' CAUSE OF ACTION BEFORE ANGLO-AMERICAN

COURTS .-..*..*-.*..***.t.-..ou~~*n*~n---~~~-*-.uonu.~owu.**.**n.~.-~.n*.n-*o-~~-.~~.*--~-o-~~--*.--n-*42

CHAPTER 3: ANALYSE OF 'WRONGFUL Lm7ACTIONS: A WRONG WITHOUT A

3.1 JNTRODUCTION&OVERVIEW...... 76 3.2 THEDUTYQUESTION:ARIGHTNOTTOBEBORNORAP~A~~ER~GHTTO~VELIFE-CREAT~G DECIS~ONSMADE BY ONE'SPARENTS? ...... 78 3.3 CAUSATION,OMISSIONS & INJURY: AN ANALOGY WlTH THE LACK OF INFORMED CONSEKTCASES A7 3.4 THEASSESSMENT OF DAMAGESIN 'WRONGFULLIFE' ACTIONS: THECOMPENSATORY PRINCIPLE OF

TORTLAW (RESTITI/TIO IN INTEGRUM) & REMOTENESSOF DAMAGE...-...... -,....O. OOO~.O...OOOOOOO---....-----.-.-.-----.-.--- 97 3 -5 LEGALLY COGNISABLEHARM & STATESWORSE THAN NON-EXISTENCE AN ANALOGY W THE (OTHER)END OF LIFE...... 108 CHAPTER 4: ANALYSIS OF 'WRONGFUL LIFE' ACTIONS: A 'PERSON AF'FECTING7 CONCEPTION OF HARM & TAE LIMITS OF LIABILITY IN ANGLO-AMERICAN TORT LAW 121

4.1 'WRONGFULLIE' ACTIONS& A 'PERSON-AFFECTING'CONCEPTION OF HARM...... ,. 1 2 1 4.2 THE PLIC CATIONS OF A 'PERSONAFFECTING* CONCEPTION OF WM:ARBITRARY DlSnNCTIONS & UNJUSTL~MITATIONS ...... 135 4.3 CONGEN~~ALDISABILITY, MEDICALNEGLIGENCE & m~ LMITS OFLIABLTTY M ANGLO-AMERICAN TORTLAW: A JOB FOR THE LEGISLATURE?.-.....-. .-~...~...-.~--~--.-.---~-...... -. 143 What in the past was accepted as cruel destiny causing tragedy which was to be borne by the individual himself .,. is now seen as a situation whose creation, avoidance and compensation affect society. At that point it is not far-fetched to ask whether the existence of the defect might not place legal responsibility upon someone.'

INTRODUCTION

Until recently, medical science was unable to provide parents with the means of predicting the birth of a defective child. Now, however, the abiiïty to predict the occurrence and recurrence of defects attributable to genetic disorders has improved simcantly, Parents cm determine before conceiving a chiid whether their genetic traits increase the nsk of that child's suffering fiom a genetic disorder such as Tay-Sachs disease or cystic fibrosis. After conception, new diagnostic techniques such as amniocentesis and ultrasonography can reveal defects in the unborn foetus, .. . Parerrts may avoid the birth of the defective child by aborting the foetus. The mcult moral choice is theirs.'

The notion that the birth of a child afflicted with disability or disease could be a moral, let done a legai, harm to either the parents or the child concerned, is an anathema to a society that has its roots in a Judeo-Christian ethic of the sanctity of human lifeo3 Until recently, the birth of a child was considered variously by members of the judiciary to be a "blessing", a 'kause for celebration" and "not a matter for compensation"? Furthemore, society and the law have traditionally regarded congenital disability and disease as the product of cruel destiny or fate rather than something that could be prevented by human intervention?

1 Judge Barak in CA 5 18/82, Zeiizov et al- v- Katz et al, 40 PB, (2) 85 (Israeli Suprerne Court) (Translated into English by Dr. Zive Weil, 9 Med. & Law 865 at 885)[hereinafter Zeitzov, cited to Med- & Law]. 'ffarbeson v. Parke-Davis, (1 983) 98 Wash-2d 460,656 P.2d 483 at 491 [cited to P.2d]. E.g. See John Harris, 'The Wrong of Wrongful Life" ( 1990) 17 J.L. & Soc'y 90 at 9 1. 4 E-g. Sec Custodio v. Bauer (1 967) 25 1 Cal. App-îd 303,59 Cal. Rptr. 463 (opening the door to recovery for the birth of an unplanned hedthy child); Troppi v. Sca& (1971) 187 N.W. 24 5 1ï (Mich- CL App-)(dlowing parents to sue pharmacist who negligently filled a prescription for birth control pills with a tranquilliser for birth of 8' child). Doiron v. Orr (1978). 20 O.R. (2d) 7 1.86 DLR.(3d) 719 at 723 (Ont H.CJ.)(describing claim for child rearing expenses for the birth of a healthy child as "simply grotesque"). 5 See gcnenlly, "Disability and Disease" in Encyclopedia of , rev, ed, Warren Thomas Reich ed., (: Macmillan) at 976ff. 'Congenital disability' refers to a condition that is existing frorn, and usually However, attitudes have changed dong with advances in science and medicine. As knowledge continues to grow as to the ongins and types of congenitai disease: for exarnple, as a result of the Human Genome ~rojectrnew ways to predict and detect, and less cornrnonly cure, such diseases are king found. A new service industry in genetic screening and counselling has sprung up over the last few decades that has enormous potential as a means of preventing the births of senously disabled child.ren8 As a result of these developments, Iegai clairns are king brought for the births of congenitdy disabled children where there is an allegation of negligence in genetic testing or advice-

A 'wron,aful birth' action is an action brought by the parents of a congenitally disabied child who claim they have been depnved by the defendant's negligence of the opporninity to avoid the child 's conception or birth with such disabilities or disease. A 'wronghl life' action is an action brought on behalf of the congenitaUy disabled child him or herself, complaining that the defendant's negligence depnved her of the opportunity to avoid her conception and/ or birth with congenitai disabiiities or disease.

The defendant's negligence in 'wrongful Life' and '' actions rnay arise from a variety of circumstances and may occur before conception, while the child is in utero or even ex utero. For exarnple, there may have been negligence in the failure to detect or communicate to prospective parents that they are carriers of a geneticdly transmissible or

be fore, birth: Academic Press Dictionary of Science and Technology, online: (last modified: 25 December. 1998). 6 Scientists have alrcady descri bed more than 3000 genetic diseases: M.S. Cardwell, "Reproduction Patients" in S-Sanbar, A-Gibofsky, M. Firestone & T-R- LeBlang, eds., Legal Medicine, 3d ed. (Mosby: Missouri, 1995) al 432. However, it is estimated that the causes of about 60 percent of birth defects in the United States are still unknown: "Birth Dcfects information" Online: March of Dimes Homepage . 7 The 'Human Genome Project' is an ambitious effort kgun in 1990 by scientists world-wide to map and sequence the entire human gene pool by the year 2005: Philip R. Reilly, "Genetics and the Law" in Erqclopedia of Bioethics, supra note 5 at 968. Ibid. at 969. Statistics show that between 120,000 and 150,000 or between 3% and 4% of al1 babies bom each year in the United States have a serious birtfi defect. Birth defects are the leading cause of infant mortality in the United States, accounting for over 8,000 infant deaths each year: "National Perinatd Statistics", Online: Mach of Dirnes chtt~://www.modimes.or~ealthLib~2/Fa~1sFig~r~s/Default~htm~~ hereditary disease9 Altematively, the alleged negligence could be in the failure to wam a prepant woman of the increased nsk of damage to her foetus from exposure to German measles dunng the fmt trimester of pregnancy," or of having a chdd with Dom's syndrome if the woman is of advanced matemal age.ll The negligence might also entai1 a fdure to advise a pregnant woman of the avaiiability of amniocente~is,~chorionic villus samphg or u~uasono~ra~h~,~~to detect a defective Although there have not yet been any cases on point, to my knowledge, 'wrongful birth' and 'wrongful life' actions could also &se ex uiero, for example, in the negligent selection of a damaged embryo or gamete for implantation as part of fertility treatment?

9 E-g.Naccasiz v. Burger, (1982) 290 S,E2d 825 (Va.)(Tay Sachs disease); Curlender v- Bioscience Laborarories.( 1980) 1O6 Cal.App.3d 8 1 1, 165 Cal, Rptr. 477 [hereinafter Curlender cited to CaLApp3d.](Tay Sachs disease); Goldberg v. Ruskin (1986) 113 Ill2d 482,499 NE2d 406 [cited to N.E.2dI (Tay Sachs disease); Schloss v. Miriam , ( 1999) WL 4 1875 (R-1, Super.) online: WL (Tay Sachs disease); Turpin v. Sortini. ( 198 1) 174 Cd. Rptr. 128,643 P. 2d 954 (hereditary deafness); Lininger v- Eisenbaum, ( 1988) 764 P- 2d 1202 (Colo.)(hereditary blindness); Park v. Chessin, (1 976) 400 N.Y.S. 2d 204, ( 1977) 440 N-YS. 2d 110 (polycystic kidney disease); Bruggeman v. Schimke (1986) 239 Kan, 245,718 P 2d 635. 10 E-g.Jacobs v. Tizeimer, (1975) 5 19 S.W. 2d 846 (Tex.); Gleitman v. Cosgrove (1967) 296 N.Y.S- 2d 87,49 N.J.22.227 A.2d 689 [hereinafter Gleirrnan, cited to k2dI; Procanik v. Cillo (1981) 97 NJ. 339,478 A2d 755, [cited to A.2dI; Smith v. Cote (1986) 128 N.H. 231,513 A.2d 34L[cited to A,2d]; Blake v. Cruz (1984) 108 Idaho 253.698 P.2d 3 15 [cited to P.2dl; McKay v- Erser Area Healrh Autho~-@[198212 -411 ER 77 1, 1 QB 1 166.2 WLR 890 (U-K CA)[hercinafter McKqÿ, cited to 1 QB 1 1661. II E-g. Becker v. Scirwarrz (1978) 386 N.E.2d 807 (N.Y.),413 N.Y.S-2d 895 [cited to N-E. 2d-1; Berman v. Allari (1979) 404 A.2d 8,80 NJ. 421 (N-Y)[Cited to A,2d]; Etkind v. Suarez. (1999) WL S98G1978 (Ga-) online: WL; James G. v. Caserra, (1985) 332 S.E.2d 872 (W-Va). '' 'Amniocentesis' is a simple procedure usually performed at 3 to 3 4i months of pregnancy. to test the foetus for genetic abnormalities. It may be offered because of materna1 age, a previous child or pregnancy with a birth defect, if there is a farnily history of genetic disease or suspected neural tube defects: "Prenatal Screening Fact SheetT*online: March of Dimes Home Page ~hrt~://www.modimes.org/HealthLibnrvUFactS heeWefaul t.htrn>. l3 'CTltrasonognphy' is the use of high-frequency sound waves for creating an image of the foetus and can be used to diagnose birth defects in body structure such as missing limbs, cleft Iip and spina bifida as well as malformations of intemal organs. 'Chorionic villus sampling' (CVS) is a biopsy of the placenta, used to test for most, but not dl, of the sarne birth defects as amniocentesis. The test can be performed earlier than uluasono,onphy between 10 & 12 weeks after a woman's last mensuual period, but has slightly greater risk of miscarriage: "Prenatal Screening Fact S heet", Ibid 'Matemal blood tests* are also now routinely O ffered by of their pregnant patients to identib certain senous binh defects in high nsk pregnancies, including spina bi fida (open spine) and Down syndrome (a c hromosomat disorder): Ibid 14 E.g. Alqrcijay v. Sr. Luke 3-Roosevelt Hospital Cenrer (1 984) 483 N.Y.S.2d 994,63 N.Y.2d 978,473 N.E.2d 244 [Cited to N.E.2d](Down's syndrome); Walker v. Man (1990) 790 P. 2d 735 (Ariz-) (rubella); Garrison v. Medical Cenrer of Delaware, (1989) 58 1 A-2d 288 (congenital rubella syndrome). '*See further infra notes 2 1 1 & 686-687 & accompanying text- 'WronS$bl life' and 'wrongfid birth' actions have akeady been brought in respect of negligent genetic counselling for a variety of known conditions. These include teratogens;16 autosomal dominant conditions that would be apparent in parents;17 autosornai recessive conditions many of which could be discovered by carrier or prenatal testing;18 and x-linked conditions that could be discovered by prenatal testingu The types of congenital disordea, in relation to which these actions are brought, will continue to change and grow as new genetic markers are discovered from which tests can be developed for the early detection of disea~e.~'

'Wronagfbl iife' and 'wrongful birth' actions are distinguishable from so-cded 'wrongfül conception' actions, which are actions brought by the parents of a healthy child who sought to avoid the child's conception and birth?' 'Wrongful conception' claims generally arise from the negligent failure to warn of the risk that a contraceptive procedure might fail? The parents in a 'wron~@ûl conception' case seek to recover the costs associated with the pregnancy and birth of the child, including sometimes dso the cos& of raising the child.

While there is no consistent approach to the proper scope of recovery of in either 'wrongfül birth' or 'wrongful conception' cases, both causes of action are now weLl

16 E.g. Rubella (Jacobs v. Theimer, supra note 10): Dilantin (Harbeson v. Parke-Davis. supra note 2). 17 E-g, Neurofibrornatosis (Speck v. Finegofd. (1979) 497 Pa. 77,439 A.2d 110 [cited to A-2d]; Effisv. Sherman, (1986) 5 15 A.2d 1327 (Pa,); Polyposis coli (Brubaker v. Cavenaugh, (1982) 542 F. Supp. 944); Larsen's syndrome (Moores v. Lucas. (198 1) 405 S. 2d 1022 (Fia-DistApp.)). In Cystic fibrosis (Shroeder v. Perkel, (198 1) 87 NJ. 53,432 A.2d 834 [cited to A.2dI): Polycystic kidney disease (Park v. Chessin. supra no te 9); Hereditary deafness (Trtrpin v. Sortini. supra note 9)(Tay-Sachs disease); (Curlender. supra note 9). l9 Duchenne muscular dystrophy (Nelson v. Krusen. ( (1 982) 635 S.W. 2d 582; Hereditary blindness (Liiiinger v. Eisenbaunt, supra note 9; Down Syndrome (Cal1 v. KezinT'm, 185 Cal. Rptr. 103 (1982)); Haemophilia (Siemieniec v. Lutheran Gen, Hosp., 1 17 I11.2d 230,s 12 N.E- 2d 69 1 (1987)[cited to NE.]), The above information was collated from M.S. Cardwell, supra note 6 at 433 & from my own research- 20 For example, recent statistics show that the incidence of children born in the United States with the HN virus has increased to approximately 1 in 2,700 births, cornpared to approximately 1 in 2,000 for congenital syphilis and 1 in 100,000 for congenital rubella syndrome: "Categories of Birth Defecls" Online: March of Dimes Homepage chtî~~/www.modimes.or9/HealthLibnrv2/factsf~ures/bd~ble.htm~. 21 These actions are also sometimes referred to as 'wrongful pregnancy' cases. -.. Ho wever, 'wrongful conception' cases may also arise from the negligent performance of a contraceptive procedure, such as sterilisation, vasectomy or . entrenched in Anglo-Amencan juri~~rudence.~In contrast, however, apart from a small number of Arnerican cases allowing the action," Anglo-Amencan Courts have ovenvhelmingly dismissed 'wrongful life' actions as stating no valid legai c~aim.~Because the rejection of 'wrongfbl life' actions is usually detemiined on a motion for summary judgement brought by the defendant, the child is denied the opportunity to proceed to triai to prove her case under the individual elements of the tort of neagence.

'Wronmoful life' actions raise speciai conceptuai problems that are not also raised by the 'wron~~lbirth7 cause of action. The problems arise fiom traditional negligence p~ciples, according to which the plaintiffs damage or cornpensable hmis determined by a cornparison between the plaintiffs current condition and the condition the plaintiff would have been in had the wrong not occurred. Because in a 'wrongful Iife' action, 'but for' the de fendant's negligence, the child would not exist, her cornplaint tends to k characterised by the Courts as a daim for dlowing her to be born, for 'wrongful entry into life' or 'wron,oful

~ife','6

As a result of this characterisation of the child's daim, Courts that have considered the cause of action, perceive that they have become entangled in a legal minefield of existential conundnims, including as to whether an impaired life is worih living, for which they are ili- equipped to deal. This has prevented analytical clarity in the decisions and has resulted, in the overwhelming majonty of cases, in judges 'throwing their hands in the air' and declaring that the action is simply not justiciable.

" For American 'wrongful binh' cases, see infra notes 256,257 & 258. For English 'wrongful birth' and 'wrongful conception' cases, see infra notes 368 & 369, respectively. For Canadian and Austraiian 'wrongful birth' and 'wongful conception' cases, see infra note 37 1. See infra notes 260-262.264 Sr 265, 25 For Arnerican 'wrongful life' cases, see infra note 263. For the leading English 'wrongful life' case, see infra note 353. For a discussion of Austraiian and Canadian cases, see below notes 370ff and accompanying text. Interestingly, Courts in both Gennany and South Afrka have also rejected the 'wrongful life' cause of action for similm reasons as given by American Courts: E-g. Friedman v. Glicksman 1996 (1) SA 1 134 (Witwatersand Local Division); Bundesgerichtshof 18 Jan. 1983 (German Suprerne Court) cited in Carel JJ-M. Stolker "Wrongful Life: The Limits of Liability and Beyond (1994) 43 1.CL.Q. 52 1 at n.2. " McKq. supra note 10 at 1 179. Yet, behind these metaphysical quandaries and fine legai distinctions, there Lies an escapable reality, namely, a disabled child who sujJers both pecuniary cos& for her medical care as well as pain and suffering from her condition, as a resuit of the avoidable negligence of the defendant. By refusing to allow a child's claim for 'wronboful iife', a gap of Liability is lefi that cannot be filled by even a successfui 'wrongful birth' action.27 Parents who are successful in a 'wrongîÙl birth' action would not recover compensation for the child's pain and sufering nor would they normaüy recover damages for the extraordinary medical and other costs of caring for the child afer the child reaches majority." Of course, there cannot be double recovery, and if allowed to brïng a claim, the child would be limited to the costs to be incurred during her rnaj~nt~.~

However, there is nothing to prevent parents who are successful in a 'wrongful birth' action from spending the money they are awarded for the chîld's rninor years on themselves rather than for the care of the child. Furthemore the parents may be statute barred from bringing an action before the chiid's condition can be diagnosed or the cm be estabiished, which would support a ~laim.~Allowing 'wrongfid life' actions would also fulfil the commonly avowed purposes of tort law of deterrence and compensation by shifting responsibility for the birth of a disabled child to the defendant whose negligence resulted in her birth with such disabilities and disease.

27 Alexander Morgan Capron, 'Tort Liability in Genetic Counseling", (1979) 79 Colum. L Rev. 618 at 658: "the absence of an entire category of damages-those suffered by the child-can be expected to result in undeterrence because there is no assurance that the jury in setting the amount to be collected by the parents will take the excluded category of hminto account.". L8 However, some Courts have allowed parents to recover in a 'wrongful birth' action for pst majority costs: E.g. Blake v. Cruz, supra note 10; Phillips v. United Srates, 575 F.Supp. 1309 (D.S.C. 1983)(PlzillipsIV); Smirh v. Cote, supra note 10 (New Hampshire law requires parents to support their disabled adult children); James G. v. Casena, supra note 11 at 882-884 (parents have common law obligation to support disabled chiid beyond minorîty); Garrisori v. Medical Cenrer of Delaware, supra note 14(parents could recover extraordinary costs of nising child for the child's Iife expectancy): Mickle v. Salvation Army Grace Hospital [1998] OJ. No.4683 online: QL (Zuber J. held in obirer that the parents would be obiiged to support the chiid until the age of 29); Krangle v. Brisco, (1997) 154 D.L.R. (4*) 708 (B.C.S.C,)(Parents of Down's syndrome child have contingent daim for recovery of post-majonty costs). 29 E.g. Harbeson v. Parke-Davis, supra note 2 at 495. 30 E.g. Alquîjay v. St. Luke S-Roosevelr Hospiral Cenrer. supra note 14; Procanik v. Cillu, supra note 10; Garni v. Mrrllikitr Medical Ctr., (1993) 22 Cal. Rptr 2d 819 (Cd.App-Dist.), However, in Blake v. Cnrz, supra note 10. the Supreme Court of Idaho held that the in a 'wrongful birth*action did not start to mn until the birth of the child, rather than from the 's negligence. This Thesis will critically analyse and explore the 'legal' justifications for rejecting 'wrongfbl life' actions. 'Wron,oful life' actions are classic 'hard cases' that raise difficult issues at the intersection of law, medicine and morality. At a conceptual level, they question the boundaries of tort law between those wrongs, which result in compensable harrns, and those, which do not. At a practical level, they challenge the ability of ton law to provide compensation for the victims of congenitd disabiiity and disease, who have suffered as the avoidable result of the defendant' s wrong.

The first chapter of the Thesis wiI1 provide an overview and analysis of the histoncd developrnent of the child's nght of action for negligently inflicted prenatal injury in Anglo- Arnerican tort law. The purpose of this analysis is to provide the legal background and context within which the nature and scope of the 'wrongful Life' cause of action can be analysed later. It will be argued that the development of the law on prenatd and preconception provides a sound conceptual basis for recognition of a to a child not yet born or conceived.

The second chapter will chronicie the approach of Anglo-Amencan courts to the 'wrongful life' cause of action. The cases wiU be andysed and considered according to jurisdiction, and within the context of the development of the 'wronegîùl birth' cause of action, which is significant as both the precursor to and the coroilary of, the 'wrongful life' action. As wiil be seen, Anglo-Arnerican courts have tended to rely on iuegitimate and value-laden reasons for refûsing to recognise the action rather than on any pnncipled approach.31 In particular, some Courts have allowed themselves to be totally 'consumed' by the metaphysical conundrums of the so-called 'Non-Existence Problem', and the emotive language of abortion politics that these cases sometimes entail. The result is the obstruction of a fiiir and impartial assessrnent of the child's claim.

'*See genenlly, Thomas W. Ogletree, "Value and Valuation" in Encychpedia of Bioefhics.supra note 5 at 25 15-2520. The third Chapter wiil criticaiiy analyse the 'legal' reasons given by Anglo-American Courts for rehising to recognise the 'wrongfûl iife' cause of action, with specific focus on the characterisation by the Courts of the child's injury or hami in being bom. At the same Ume, several possible alternative approaches to analysing the child's claim WU be argued for within the traditional confmes of tort law, wtiich might avoid some of the metaphysical conundrums thought to be posed by 'wrongful life' actions. It is argued that the child's clah could be accepted, for practical purposes, as analogous to an ordinary prenatal injury ciaim in negligence? Altematively, to take account of the reality that 'but for' the defendant's negligence, the plaintiff would not have been bom, it is argued that it is neverthetess possible to compare the child's impaired life with non-existence for the purposes of both detenninùig the child' s injury and measwïng her 'cornpensable loss' .

This analysis wiil be undertaken broadiy within a conventionai or fauli based approach to negligence law and with regard to the recognition by Anglo-American courts, to varying degrees, of other birth related torts, narnely 'wrone@d conception' and 'wronghil birth' actions. Where relevant, analogies with 'wrongful death' actions and with what 1 have called, the 'failure to wm' or 'lack of informed ' cases and the 'end of life' cases, will be made, for the purpose of cornparison.

The fourth and final Chapter will return to the 'logico-legai' dilernma posed by the 'wronghil life' cause of action for tort law, and in particular, a 'person af5ectingTconception of hm that arguably underlies the rejection by the vast majonty of courts of the child's claim. Some of the legai and philosophical literature on the nature of 'hm' wili be considered in an attempt to better understand the ûue nature of 'wrongful life' actions, and the limits of liability in Anglo-Amencan tort law. The implications of this 'person affecting' conception of hmwill be considered for some contemporary issues, including the negligent screening by fertility clinics for the HTV virus, the selective reduction of multiple pregnancies, the negligent selection of damaged embryos as part of fertility treatment and human cloning.

32 E.g. Garni v. Mrtflikin Medical Ctr-,supra note 30 at 827: "Claimsfor 'wrongful life' are essentially actions for malpractice based on negligent genetic counseling and testing.". Some possible alternatives to 'wrongful Me' actions are briefly considered that might enable legal reco-@ion of the child's claim. These include conside~gthe child's claim as an so that damages could be awarded on the basis of the legal wrong, even where there has been no legaily cognisable ham. Finaiiy, it is conciuded that the legislature might provide the most appropriate forum, at least, for providing the child compensation, in circurnstances where the Court's are either unwilling or unable to do so. In this respect, a statutory no-fault compensation scheme is recommended for persons with congenital disability or disease.

References in this Thesis to 'Angio-American' law include the common iaw of the United States of America, England, Canada and ~ustralia~~The methodoiogy of this Thesis WU be principally doctrinal analysis of the relevant case law, Arguments about the implications of 'wron,oful life' actions and the practice of genetic counselling for eugenics WU not be directly addressed? Rather, this Thesis will proceed on the assumption that the widespread

33 These jurisdictions were chosen because of their common roots in Englis h law and because of their accessibility to the writer. New Zealand is not considered because the legal climate is distinguished by the existence of a no-fault Accident Compensation Scheme. Other jurisdictions will be considered in passing only for the purpose of comparison. Where possible, the more important distinctions between AngleCanadian & Ausualian ton Iaw and American ton law will be highlighted, " See generaliy, Harbeson v. Parke-Davis, supra note 2 at 49 1 (posing the question whether these developments are "the first steps towxds "a Fascist-Oweilian societal attitude of genetic purity" or whether 'They provide positive benefits to individual families and to ail Society by avoiding the vast emotional and economic cost of defective children"). For a scathing criticism of the practice of genetic screening and 'wrongful life' and 'wrongful birth' lawsuits aç promoting eugenics and the notion that the Lives of disabled people are 'less vaIuable', see Cam Dunne & Catherine Warren, "Lethal Autonomy: The Maifunction of the practice of genetic counseliing and the Iegality in most jurisdictions of abortion provides sufficient societal endorsement of the legal actions that may legitimately arise therefrom. In this respect, it should not be forgotten that neither 'wrongful life' nor 'wrongful birth' actions could succeed unless it can be shown, according to the rules of evidence, that the defendant was in breach of a legal duty to take care.

------. ------Informed Consent Mechanism Within the Context of Prenatal Diagnosis of Genetic Variants" (1998) 14 Issues in Law & Medicine 165-202 at 196ff. See dso Abby Lippman, "Prenatal Genetic Testing and Screening: Constnicting Needs and Reinforcing Inequities" (1991) 17 Am. J.L. & Med. 15; Suzanne P. Tomlinson, "Genetic Testing for Cystic Fibrosis: A Personal Perspective" (1998) 1 1 Harv. J.L. & Tech. 551. CHAPTER 1: THE DEVELOPMENT OF THE CEüLD'S RIGHT OF ACTION FOR NEGLIGENTLY INFLICTED PRENATAL INJURY

1.1 The EarIy Common Law & the Requirement of Live Birth: Walker, Dietrich & Allàire.

Aithough Blackstone was able to assert confidently that in 'Life is the immediate gift of Gd, a right inherent by nature in every individual, and it begins in contemplation of the law as soon as an infant is able to stir in the mother's womb' [Commentaries (15~ed-), Vol. 1, p. 1291, subsequent legal development in relation to the unbom child in a civil context does not wholly endorse this view. The rights of such a chiid are recognised at law for certain limited purposes only .. . and there was an apparent hiatus in the law, which was highlighted by the national tragedy caused by the devastating effects of the dmg thalidomide. This apparent gap ... was suggested by the absence of any English decision on whether a tortious action would subsist at the suit of a plaintiff in respect of pst-natal damage suffered as a result of pre-natal fau~t.~'

The absence of Engiish case Iaw that Pace refers to led the Engiish Law Commission in its Report entitled Injuries to Unborn Children in 1974 to recommend legislation creating a clairn for pre-natal inj~r~.~Subsequently, the Congenital Disabilities (Civil Liability) Act 1976 (U.K.), which appiies to births after 21 July 1976, was enacted." The Congenital Disabiliries Act enables a child that is born dive with congenital disabilities, which would not otherwise be present because of an occurrence before its birth to brïng an action." An 'occurrence' before birth to which the Act applies is one, which affected either parent's ability to have a normal, healthy child, the mother during pregnancy, or the mother of child

35 PJ. Pace, "Civil Liability for Pre-Natal Injuries" (1 977) 40 Mod. L Rev. 14 1 at 14 1. 36 The Law Commission, Report on Injuries ro Unborn Chifdren[Advice to the Lord Chancellor Under Section 3( 1 )(E) of the Law Commissions Act 1965) (Law Corn- No. 60) (London: Her Majesty's Stationery Office, i 974)[hereinafter Report on Injuries ro Unbom Children]. 37 Congenital DisabiIities (Civil Liability) Act 1976 (U-K,), 1976, c 28, ~.4(5)[hereinaFterCongenital DisabiIities Act].

38 Ibid. S. I(1). The Iiability of the defendant under the Act is derivative in that liability depends on the defendant being independently liable in tort to one or other of the child's parents: lbid S. I(3). This avoids any problems of finding a nexus of legd duty between the defendant and the child in urero: See furiher paras 45,52 & 75 of the Report on Injuries ro Unborn Chifdren,supra at note 36. in the course of its birth.n References to the chiid king bom 'disabled' are to "its king born with any deformity, disease or abnormality, including predisposition (whether or not susceptible of immediate prognosis) to physical or mental defect in the future'?.

However, even in England, the common law remains relevant as claims arïsing from births before the enactment of the Congerzital Disabilities Act on 22 July, 1976 continue to be brought? It was assumed or conceded by the parties for the puiposes of a number of cases that a comrnon law clairn for pre-natal injury would lie? However, it was not und 1992 that Engiïsh Courts explicitiy endorsed an action for prenatai injury where the defendant tortiously inflicted physical injury to the foetus through the body of the motherf In Burton v. Islington HA., the English Court of Appeal held that a chiid bom with disabilities alleged to have been caused by the negligence of the defendant while the child was en ventre sa mêre could maintain an action in negligence. The case was decided on the comrnon law in force before the passing of the Act, as it had developed in light of al1 relevant authonties, including t hose from Commonwealth jurisdictions.

However, American and Commonwealth Courts were themselves slow to recognise liability for negligently inflicted pre-natal injury. For a long time, the obiter words of Lamont J in Montreal Tramways, refiected the legal position in Anglo-American courts that, "the great weight of judicial opinion in the cornmon law courts denies the right of a child when bom dive to maintain an action for pre-natal injuries."." This statement was a reflection of nurnerous early American authorities and the Irish case of Walker v. Great Northern

40 Ibid. s.4( 1 ). JI This is at least pady because the limitation period for such daims only begins to run. if at dl, when the child brïnging the daim reaches the age of 18: 1. Kennedy & A. Grubb. Medical Lw: Text wirh Materiais 2" ed. (London: Buttenvorths, 1994) at 930. 42 E.g. McKay, supra note 10. According to Kennedy, one of the most important English cases on medical negligence, Whireltortse v. Jordan [ 198 1 ] 1 W.L.R. 246 (HL), which involved allegations of negligence in utero and during birth, failed completely to deal with the issue: Ibid. -13 Bitrtorr v. Isfingron Heafrh Authority and de Mortel1 v- Menon and Srtrton Health Authority [1992] 3 AI1 E.R. 833, (1992) 10 B.M.L.R. 63, [1993] Q.B. 204 (U-K.CA.)[hereinafter Burton v. lslington HA.,cited to Q.B.]. U Montreal Tramways v. Leveille [ 19331 4 D.L.R. 337,119331 S.C.R- 456, ( 1933) 4 1 C.R.C. 29 1 (S.C-C.) interpre ting the civil taw of Quebec)[hereinafter Montreal Tramtvqs cited to D.L.R]. Radruad Company of ~reland;~'al1 denying recovery for negligently infiicted prenatal injuries. In Walker, the Court of Queen's Bench in Ireland, then part of Great Britain, also unanimously denied a cause of action for a child born injured when its mother fell on railway trac ks negligently maintained b y the railway ~orn~an~.~

Dietrich v. Northampron was the ktrecorded American case to address the issue of prenatal toa liability." In that case, recovery was denied to a child who died shortly after its Iive birth as a result of prenatal injury when its mother slipped and feu on the defendant's negligently maintained road when she was 5 moaths pregnant. Citing a lack of precedent, Justice Holmes of the Massachusetts Supreme Judicial Court concluded that the unborn chiid did not have standing to sue because it was not a separate entity apart of its mother at the time of the injury. Relying on Dietrich, the Iilinois Supreme Court in Allaire v. St- Luke's Hospital also denied a cause of action to a child born senously and pennanently disabled as a result of injuries sustained when its mother while pregnant was thrown to the floor by a negligently operated e~evator.~Accordingly, the Arnerïcan Law Institute in the L939 edition of the Restatement of the Law, Torts expressed the majority view in Dietrich when it said, "A person who negligently causes harm to ân unbom child is not liable to such child for the har~n.~~

For a long time, a perceived obstacle to the recognition of a chiid's claim for negligently inflicted prenatal injury by Anglo-American Courts was the difficulties of establishing a causal connection between the negligent act or omission and the damage." Evidentiary

45 ( 189 1 ), 28 L.R. Ir. 69, (Q.B. h.)[hereinafter Walker]. 46 Ibid. 47 ( 1884) 138 Mas. 14 [Hereinafter Dietrich]. 48 (1 900),184 111.359,56 NE638 [hereinafter Affaire,cited to N.E.]. See also Drobner v. Peters, (192 1)' 252 N.Y. 220. 133 N.E. 567; tipps v. Milwaukee Electric Ry. & Lighr Co., (1916) 164 Wis. 272,159 N.W. 916; Magnolia Coca Cola Bortling Co. v. Jordan, (1935) 124 Tex. 347.78 S-W.2d 944. Restatement of the Law of Torts (19391, § 869 at 404- 50 As commenred by Fleming "[ajvoiding such an egregious error as in Monrreal Tramways .,. when club-feet, a congenital defect, were attributable to a uaffic accident": J.G. Fieming, The Law of Tons, 9" ed. (Sydney: Law Book, 1998) at 11.254. A reason for Smith J's dissent in Montreal Tramways was îhat he doubted whether thc mcdical cvidence would allow the reasonable inference that the plaintiff s club feet resulted frorn the injury to the mother. Further, in Walker, a subsidiary ground put forward by O'Brien C.J. for denying the daim was difficulties of proof will undoubtedly continue to plague prenatal injury cases and accordingly, the requirernent for strict insistence on appropriate medical evidence will remain important to such cases? However, difficulties of proof are not unique to prenatal injury cases and they are not, and are no longer regarded as, an adequate reason for the categorical denial of redre~s.'~On the contrary, the rapid increase in medical knowledge of the causes of congenital defects, from the teratogenic hazards of modern drugs such as Diethylstilbestrol (DES) to the genetic sipifiers of iüness and disease, have resulted in community demands for legal protection of the unb~rn.~

However, the more pervasive Iegal obstacle to the recognition of a child's claim for prenatd injury was the comrnon law rule that a foetus was not in law a person. This rule may have been based on the statement of Justice Holmes in Deitrich that "faln unbom child has no existence as a human being separate from its rn~ther.".~~indeed, there has long been a distinction made by the Common Law between the legai status of a foetus or child en ventre sa mêre, and the theological, philosophical or biologicai view of wben persoahood begins? While it may be that, from a biological or theological perspective, Life be,oins at conception, thar "[Tlhere are instances in the law where mies of right are founded upon the inherent and inevitable difficulty or impossibility of proof. And it is easy to see on what a boundless sea of speculation in evidence this new idea would launch us.": Walker, supra note 45 at 8 1. 5 1 It was concluded somewhat pessimistically by the Royal Commission on Civil Liability and Compensation for Personal Injury in 1978 that, "only a minute proportion of those who are born with congenital defects rnay be abIe to establish causation and prove that it was due to negligence, and that there is Iittle prospect that this proportion will increase.": U.K., Royal Commission on Civil Liability and Compensarionfor Personal Injury, (Report, Vol. 1) Chaired by Lord Pearson (London: Her Majesty's Stationery Office, 1978) c26, at 305 [hereinafter, the Pearson Repon]. " J.G. Fiemins, supra note 50 at 182. Again. in the words of Pace, "Obviously, the difficulty of establishing a connection between the defendant's conduct and the pIaintiff s injury is not a sufficient reason for denying a ripht of action ... ahhouph the difficulty of establishing such a connection wiIl increase the more removed in time is the wrongful act from the accmd of the cause of action." PJ-Pace, supra note 35 at 144. E-g. Repon on Injuries ro Unborn Children, supra note 36 at 9. But Cf:The Pearson Report, supra note 5 1 at 304. a Dietrich, sttpra note 47. See dso Paron v. Brirish Pregnancy Advisory Service Trustees 119791 Q-B. 276; In Re F. (in itrero) [ 19881 Fm, 122; C v. S. [1988] Q.B. 135.

55 E.g. Tremb!ay v. Daigle [1989] 2 S.C.R. 530,553-536.2 D.L.R. (4") 634 (S.C.C.) [hereinafter Tremblay V. Daigle, cited to S.C.R.] ('The Court is not required to enter the philosophical and theological debates about whether or not the foetus is a person. but, rather, to answer the Iegal question of whether [the law] has accorded the foetus personhood. Metaphysical arguments rnay be relevant but they are not the prirnary focus of inquiry. Nor are scientific arguments about the biological status of the foetus determinative in our inquiry. The task of propcrly classifying a foetus in law and in science are different pursuits."). legai personality oniy attaches once a child is born aiive? However, the Courts have devised various ways of overcoming the common law mle that legal personality begins at live birth for the purpose of recognising an infant plaintiff's clah for prenatal injury.

1.2 Deeming Legal Personality at the Time of the Wroag: Montreal Tramways

If it is considered that the relevant time when legal personality must exist is at the time the negligent act or omission occurs, the unborn plaintiff could be deemed upon Live birth to have been a person entitied tu sue at the time of the accident, This legai fiction, imported from the civil Law, has ken adopted in the past wherever it was necessary for the protection of the unbom child? for example, to eoable an unboni child to make a claim under a wi11,~or as a dependant under applicable worker's compensation laws." It has also been used to establish dependency for the purposes of bringing an action under the applicable Fatal Accidents ~ct.'~More recentiy, it has been used to allow a child to make a claim under a will when it was a frozen embryo at the time of its father's death."

The Supreme Court of Canada implicitly adopted this legal fiction into a prenatal context in Montreal 7kamways6' The defendant Raîiway Company was held Liable under the Quebec Civil Code for negligence, whkh the rnajority of the court accepted, caused a pregnant passenger who feu while alighting from a tram car to give birth to a child with club feet? On

56 Dehler v. Ottawa Civic Hospiral (1979) 25 O.R. (2d) 748 at 761, 101 D.L,R- (3d) 686 (Ont- HC)affd ( 1980) 29 O-R. (2d) 677, 117 D.L,R, (3d) 5 12 (Ont. CA-)- See dso B-M. Dickens, ''Abortion, Amniocentesis and the Law" (1 986) 34 Am. J. Comp, L. 249; B.M. Dickens, "'Wrongful Birth and Life, Wrongful Death before Binh, and Wrongful Law" in McLean, Sheila, A.M., ed., Legal Issues in Human Reproducrion (London: Gower, 1989) 80-1 12, at IO8 n.5 [hereinafter "Wrongful Birth and Life, Wrongful Death before Birth].

" Williams v. Ocean Cod [lm71 2 KB,422 (U.K.C.A.)- See also BIasson v. Blasson (1 864) 2 De GJ. & S. 665 at 670: The George and Richard (1 87 1) L.R. 3 A. & E. 466, at 480.

59 The George and Richard, ibid. 60 Re Esrare of K; Er pane Public Tmee(22/4/96) The Aust. Legal Mnthly Dig. (Tas. Sup. Ct.), ontine: Thomson Professional Information Asia Pacific Pty Ltd tfa LBC Information Services 19984. 6 1 Moritreal Tramways, supra, note 44 at 340, 346. Gillard J. also relies on this reasoning as an alternative analysis in FVatt v. Rama [1972] V.R. 353 at 377 (V.S.C.). Montreal Tramways. ibid. the manifest injustice of continuing to preclude recovery for prenatal torts, Lamont J. for the majority, said,

Lf a child after birth has no nght of action for pre-natal injuries, we have a wrong inflicted for which there is no remedy. .. . If a nght of action cm be denied to the child it wili be compelled, without any fault on its part, to go through life carrying the seal of another's faulr and bearing a very heavy burden of infityand inconvenience without any compensation therefor. To my mind, it is but natural justice that a child, if bom dive and viable, should be dowed to maintain an action in the ccurts for injuries wrongfdly committed upon its person while in the womb of its motherU

1.3 The Viability Requirement in America & a Right to Begin Life with a Sound Body & Mind: Bonbrest v. Ku&

Amencan Courts developed the so-caiied viability requirement to overcome the doctrinal concem over the plaintiffs legal status at the tirne of the negligent act or omission." In Bonbresr v. Korz, the United States District Court of Columbia reiied on the dissenting opinion of Justice Boggs in Allaire to hoid that a duty of care could be owed to a viable foetus." The case concerned a child that sustained prenatal injuries as it was being delivered from the mother's womb." In his dissenting opinion in Allaire, Justice Boggs distinguished Dierriclt by narrowly interpreting it as applying only to a non-viable foetus." In this way, he was able to conclude that the foetus in Allaire had a separate existence at the time the injury was sustained so that the hospital owed it a duty from that time." Since Bonbrest v. Kotz, a

63 Ibid. at 345-6. See also Pinchin et al., N.O. v. Sarztnm ins. Co. Lrd., [1936] 2 S-Africa 254, where this legal fiction was adopted into South African faw in a prenatal injury context. M Viability refers to the stage of development shown by medical science at which a foetus cmsurvive independently of its mother, usually at about the 7th month: Prosser & Keeton on the Law of Tons, S~ ed. (St-Paul: West Publishing, 1984)[hereinafter Prosser & Keeton on Torrs] at 368- " Bonbrest v. Korz (1946) 65 F. Supp. 138 (D.D.C.) at 140. 66 Ibid. 67 Allaire, supra at note 48 at 642. Ibid. series of cases, many of them expressly ovemling prior holdings rapidly followed, in what has been described by Prosser as "arather spectacular reversal of the no-duty le.".^

However, the viability requirement has more recently been acknowledged to be "a most unsatisfactory criterion" dependent on the health of the mother and "many other matters in addition to the stage of deve~o~ment."?~With advances in medical science, it is now clear that the foetus is most vuinerable during the early stages of embryonic deveiopment, for exarnple, where the mother is infected with Gennan Measles or ingests dnigs with a teratogenic effect7' Accordingly, most couas have allowed recovery even though the injury occurred early in pregnancy when the child was not yet viableen Today, a child who is born alive is pennitted to recover for negligently inflicted pre-natal injury in virtually every Amencan jun~diction.'~

In Sylvia v. Gobeille, for example, a child born with congenital rubella syndrome was successful in a pre-natal tort action against her mother's physician who had negligently failed to prescnbe gamma globulin for her mother in the early stages of prepancy." The Supreme Court of Rhode Island rejected the viability requ~ernenton the basis that an injury inflicted pnor to viability was no less meritorious than one sustained after." The Court also held that it was "fitting and proper to protect a chiid's right to commence Life unhampered and unimpaired by damage negligently caused to his body or mind by another."." In so doing,

69 Prosser arid Keeron on Torrs, supra note 64 at 368. B y 1977, the Second Restatement provided that "one who tortiously causes hann to an unbom child is subject to liability to the child for the hmif the child is born ai ive": fbid 70 Prosser and Keeton on Torts, ibid. at 369. 71 Ibid. Ibid. at 368-69. E-g. Smith v. Brennan. (196û) 3 1 NJ. 353, 157 k2d 497,504 [Cited to A-2dl per P~oc~o~J: "the viability distinction has no relevance to the injustice of denying recovery for hmwhich can be proved to have resulted from the wrongful act of another."; Rerislow v. Mennonite Hospital, (1977) 67 ni. 2d 348,366, 367 N.E. 2d 1250 at 1253 [hereinafter Renslow, cited to N.E- 2d.I. Ibid.

74 ( 1966) 220 A.2d 222, 10 1 R.I. 76 [Cited to A.2dI. '' Ibid. at 224. 76 fbid. at 223. But see further infia note 43 1, the Coua endoned the principle fkom a New Jersey caseTmthat "a child has a legal right to begin life with a sound mind and body."."

1.4 The Unborn Chiid as a Foreseeable PlaintifE W4Lt v. ha,Duval v. Seguin & Burfon v. Islingon H.A.

Some Commonwealth Courts, however, chose the relevant time when legd personaiity must exist as the time when the cause of action accrues, rather than the time of the negiigent act or omission. On this view, as damage is the gist of an action in the tort of negiigence, an action for prenatal injury does not accrue until the child's live birth with the relevant injuries at which time the child is a Iegal penon with standing to sue.79 On this approach, the problem is no longer one of legai peaonaiity, but rather how to formulate the dury relation~hi~.~

Various Engkh and Commonwealth Courts had established that it was not necessary for the damage to coincide in time and place with the wrongful act or omission." In a number of these cases, the defendants did not know of the existence of the plaintiffs.'2 However, it was not until the Australian case of Watt v. Rama that it was established, in a prenatal injury context, that a plaintiff need not be foreseeable as an identrped individual at the time of the wrong in order to found a duty of are.'^ A pregnant woman who had been injured by the

77 Smith v. Brennan, sripra note 72 at 503. 78 Sytvia v. Gobeilte, supra note 74 at 224. See also Renstow, supra note 72 at 1255 where the rnajority said, "We believe chat there is a right to be born free from prenatal injuries foreseeably caused by a breach of duty to the child's mother.". However, see further infra notes 297,431 & accompanying text- 79 For cxample, in a ncgligence action. the [imitation period generally runs from the tirne the action accrued, namel y when the injury occurred: Watson v. Fram Reinforced Concrere Co. (Scorland) Lrd.. ( 1960) S.C. (H.L.) 92 at 109-1 10, 1 15119. See also Watt v. Rama, supra note 61 per Gillard J. at 377-78- See generally J.G. Fleming, supra noie 50 at 183. 81 Donogitrte v. Stevenson [ 19321 A.C. 562 (H.L.); Grant v. Australian Knitting Mills [ 19361 A.C. 85 (P.C.); Dorset Yacht Co. v. H~meOBce [I 9701 AC. 1004 (H.L.) [Hereinafter Dorset Yachr Co.]. See also Hawkins v. Clqron ( 1988) 164 CLR 539 at 577-578 (H.C.Aus.); Chapman v. Hearse ( 196 1) 106 CLR 1 12 at 120- 12 1 (H.C. Aus.). E.g Grant, ibid; Dorset Yacht Co., ibid. E-g. Watt v. Rama. supra note 6 1. Applied in Kosky v. Tmrees of Sisrers of Charigv [ 19821 V.R. 96 1 (Vic. Sup. Ct.). See also Lynch v. Lynch (1991) 25 N.S.W.L.R. 41 1, 14 M.V.R. 521, (19911 AustTorts R. 69,355 (N.S.W.C.A.), defendant's negligent driving gave birth to the plaintiff who suffered from brain damage, epilepsy and quadriplegia. Arnong the prelirninary questions of law that the Full Court of the Supreme Court of Victoria had to decide was whether the defendant owed the unbom chiid a duty of care.

The Court assumed, for the purpose of answering the preLiminary questions that the defendant's negligent driving caused the plaintiff s injuries." In finding in favour of the child, al1 three members of the Court resorted to basic principles of negligence law, in particular the 'neighbour pnncip1e7 as had by then been enunciated by Lord Atkin in the Iandrnark case of Donoghue v. ~tevenson."

Winneke C.J. and Pape J considered that it was reasonably fureseeable at the time of the collision that the defendant's negligence might cause injary to a pregnant woman in the car with which he collided and that as a result, the child she was carrying might be boni injured." This reasonable foreseeability gave rïse to a contingent or potential relationship capable of imposing a duty on the defendant to the unborn child that crystuiiised when the chiid was boni dive, at which time the breach occurred." The Judges said that,

[AIS the child could not in the very nature of things acquire rights correlative to a duty until it became by birth a living person, and as it was not until then that it could sustain injuries as a living person, it was, we think, at that stage that the duty arising out of the reiationship was attached to the defendant, and it was at that stage that the defendant was, on the assumption chat his act or omfssion in the driving of the car constituted a failure to take reasonable care, in breach of the duty to take reasonable care to avoid injury to the child. On this view, the fact that damage was done to the embryo or foetus before birth, if such was sought to be established, was not an independent element in the

8.8 Ibid.

85 Supra, note 8 1. 86 Wart v. Rama. supra note 6 1 at 360. This view of foreseeability has also been applied by the High Court of Australia to allow recovery for a doctor who came to the aid of a person injured at the scene of an accident: Cizapn~anv. Hearse, supra note 8 1.

87 ZVarr v. Rama, ibid at 360-6 1. plaintiff s cause of action, but merely an evidentiary fact relevant to the issue of ca~sation.~

Judge Gillard reached the sarne conclusion by a slightly different route. He found, on the assumed facts, that the unbom child was at the time of the wrong a member of a class that rnight rensonnbly be affected by the defendant's lack of care." He concluded that "If this [reasoning] be right, then the contention of the defendant that for a duty of care to exist there must be a person in existence to observe the duty and there must be a person in existence to possess the correlative right at the tirne the defendant committed the fault cannot prevaii. ,r .90 He said that "[ait the crucial time, that is when the tort was complete, there existed a nght in the plaintiff, as against the defendant, to be boni free of any disability due to the fault of the defendant, and a duty imposed on the defendant to use reasonable cmin his pnor actions not to cause that damage to the plaintiff.9, .91

A few months after Watt v, Rama was decided, the Ontario High Court in Duval v. Seguin also had recourse to the developing principles of tort law to hold that an unbom child was "within the foreseeable risk incurred by a negligent motorist."~* Consistently with the reasoning of Judge Gillard, Judge Fraser considered that once the child was bom alive with injuries resulting from the accident, the cause of action was complete and damages would lie." He concluded, "[a] tortfeasor is as liable to a child who has suffered pre-natal injury as to the victirn with a thin skull or other physical defect."." Judge Fraser also considered that in order to determine liability in negligence for prenatal injury, it was not necessary to

Ibid. See also Gillard I. at 374-75. 89 Ibid. at 374. He said, 'The unbom child should be included in the cfass of persons likely to be affected by [defendant's] carelcssness since the regeneration of the human species irnplies the presence on the highway of many pregnant women.". See also X and Y (By her Tutor X) v. Pal (199 1 ) 23 N.S.W.L.R. 2 (NS-W. C.A.)[Hereinafter X. and Y. v. Pal] at 38. Ibid. at 377.

91 Watt v. Rama, ibid. However. unlike the other judges, Gilfard J, was nevertheless prepared to deem an unborn child a person in king at the time of the defendant's negfigence if required. An appeal to the Pnvy Council in Watt v. Rama was subsequently abandoned.

92 Duval v. Seguin. (1972) 26 D.L.R. (3d) 41 8 at 434.

93 Ibid.

9J fbid. Sec also the Repon on Injuries ro Unborn Children, supra note 36 at paras 72-74. consider whether the unbom child is a legal peaon or at what stage it becomes a person.% Whiie it was a foetus or unborn chiid when injured, the darnages sued for are the damages suffered by the chiid since birth and which will continue to be suffered as a result of the injury?

More recently, in Burton v. Islington HA., the English Court of Appeai relied on Wart v. Rama and Duval v. Seguin in holding that, aithough a fmtus did not enjoy an independent kgal existence, the defendants' neveriheless owed it a dury of care." In the fmt of the two cases, which were considered together, the plaintiff aiieged the medicai staff should have done a pregnancy test on the plaintiff s mother who did not know she was pregnant with the plaintiff, before carrying out a dilation and curettage procedure. In the second case, the plaintiff alieged negligence by medical staff when the mother was in labour at the tune of the delivery and birth.

Lord Justice Dillon of the English Court of Appeal, Lord Justices Balcombe and Leggatt concumng, dismissed appeais by the defendants from the decisions in favow of the plaintiffs at first instance. Prefemng the views of the Court in Watt v. Rama, the English Court of Appeal rejected the Irish case of Walker as unsatisfactory because it was founded on the fact that the defendant railway company sold the plaintiff's mother one ticket rather than two? The Appeal Cornmittee of the House of Lords subsequently dismissed the petition of the defendant Health Authorities for leave to appeai the decision of the Courf of ~~peal."

95 Duval v. Seguin, ibla.

% ibid. at 433. 9ï Supra, note 43.

!nt ibid. at 23 1. Note that the matter has now been put to rest in Ireland by section 58 of the Civil Liability Act 1961 (IreIand) which provides that: "For the avoidance of doubt it is hereby dectared that the law relating to wrongs should apply to an unborn chiid for his protection in like manner as if the child were born, provided the child is subsequently born alive": See further A. Whitfield, "Cornrnon Law Duties to Unborn Children" (1993) Med. L. Rev. 28 at 35. 99 ibid. at 233 (Lords Templeman, Ackner & Mustill). 1.5 The Status of the Unborn ~hild'~~&

By concluding that the cause of action does not accrue until the plaintiff is bom alive. these cases effectively disposed of claims by or on behalf of ruiborn chi~dren.'~' Accordingly, at least in England, Canada and Australia, an interlocutory injunction cannot be brought on behalf of a foetus preventing the woman carrying it from having an ab~rtion."~Furthemore, in Winnipeg Chld and Family Services (Northwest Area) v. G. (D.F.), the Supreme Coun of Canada recently held that it did not have jurisdiction to order the detention and treatrnent of a pregnant woman who was addicted to glue sang to prevent harm to her unborn child.'" Simiiarly, in re F (in Utero), the Engiish Court of Appeal held that an English court does not have junsdiction to ward an unborn child on the basis that it has no independent legal existence.'" While these decisions are bound to attract controversy, they are consistent with both Iegal principle and policy supporting the bodily integrity, autonomy and privacy rights of pregnant ~ornen.'~'

It is also arguably consistent with both legal principle and policy that there can be no cause of action for or on behaif of a stillbom foehdq Anglo-American comrnon law mditionally

100 While the tems 'unbom chiid' and 'foetus' are used interchangeably in this Thesis, the use of the former phrase is not intended to imply that a foetus has iegal rights independent of its mother unless and until it is boni alive. 101 J.G. Fleming, supra note 50 at 183. 102 E.g. Tremblq v. Daigle, supra note 55; Paton v. British Pregnancy Advisory Services [ 19791 1 Q.B -276; C v. S [I988] 1 Q.B.; Dehler v. Ottawa Civic Hospital (1979). IO1 D.L.R, (3d) 686.25 O.R. (2d) 748, (H-CJ.) (An appeal to the Ontario Court of Appeal was dismissed: 117 D.L.R. (3d) 5 12n,29 O.R. (2d) 677n); C v. S [1988] 1 Q.B. 135. A pregnant woman also probably cannot be forced against her wiIl to undergo a caesarean section even if necessary to Save the life or hedth of the foetus: E.g. In re A.C. 573 A. 2d 1235 (1990) (D.C. C.A.). But Cf: Re S (adult: refisal of medical treatmenf) [1992] 4 Al1 ER 671, (1992) 9 BMLR 69 (H.C.): Raleight-Firkin-Paul Morgan Menlorial Hospital v. Anderson 20 1 A.2d 537 (1 946, NJ. Sup. Ct.). See generally, Kennedy & Gmbb, supra note 41 at 346if.

'O3 Winnipeg ChiId and Family Services (Northwest Area) v. G. (D.F.) 152 D.L.R. (4h> 193 (S.C.C.)[Hereinaiter Winnipeg Child Case] (majonty of S:2).

IMRe F (in utero) f 19881 Fam. 122.

'O5 E.g. Winnipeg Child Cose, supra note 103. See also J.G. Fleming, supra note 50 at 183 n. 269. t 06 E.g. See generally, B. Dickens, "Wrongful Birth and Life, Wrongful Death before Birth", supra note 56 at 96ff. held that the death of a person was not a legal injury for which darnages could ensue." Legislation was introduced fmt in England, then in most Commonwealth and Amencan jurisdictions, to overcome the injustices of this dethat effectively made it preferable for a wrongdoer to kill by his negligence thao to injure or rnairn.lm Lord Campbell S Act and most wron,oful death statutes that are modelled after it confer a derivative statutory nght of action on the deceased's representative where a 'person' who died as a result of the wrongful conduct of another would have had a cause of action if death had not ens~ed.'~

Accordingly, under the various wrongful death statutes, as well as at cornmon law in rnany American jurisdictions, relatives can generaily bring an action for damages as a result of the wrongful death of the deceased, including for the 'wrongful death' of a chitd that was bom a1i~e.l'~That this statutory right of action Mght extend, on a proper construction of the governing legislation, to the putative parents of a foetus that is stillborn might be consistent with public sentiment."' However, the conclusion of some American Courts that a separate right of action exists on behalf of a stillbom foetus, whether or not derked fiom specific legi~lation,"~is inconsistent with the history, purpose and lanpage of 'wrongful death' statutes as weil as the 'born dive' iule at common la^."^

107 E.g. Baker v. Bolron. 1 Camp. (1 go£?),170 Eng. Rep. 1033 (KA.). The reasons for this rule were not articulated by the Court, However, it has been speculated that they might be that allowing a daim would result in 'runaway damages' and tha~it is 'immoral' to place a monetary value on a human life: John W. Wade et al, Prosser. \Vade & Schwanz's TomCases & Marerials 9&ed. (New York: The Foundation Press Inc.. 1994) at 550 [hereinafter Prosser. Wade & Schwarrz's Torts]. 108 E.g. Lord Campbell's Act (The Fatal Accidenrs Acr) was introduced in England, followed by similar legislation in mos t Australian and Amencan jun'sdictions: See generall y in relation to American jurisdictions, Prosser. Wade & Schwamis Torts. ibid. at 546 ff. For a discussion of the Ausualian legislation. see Francis Tnndane & Peter Cane, Tire uIw of Torrs in Australia 2& ed. (Melbourne: Oxford University Press. 1993) at 508ff. The U.S. Supreme Court also judicially ovemled the common Iaw rule prohibiting 'wrongful death' actions under general maritime law: Moragne v. States Marine Lines, Inc., (1970) 398 U.S. 375,90 S.Ct. 1772, 26 L.E.2d 339 ("the rule against recovery for wrongful death is sharply out of keeping with the policies of modern Arnencan maritime law.").

'O9 Ibid. 110 'Wrongful death' statutes are distinguishable from 'survival' statutes which do not create a new cause of action, but simply allow any cause of action that the deceased might have had while alive to survive her death: B. Dickens, "Wrongful Birth and Life, Wrongful Death before B irth, supra note 56 at 97. "' fbid. at 99. However. claims on behalf of parents for 'wrongful death' will be unnecessary where the general law allows parents to bring their own cause of action: Ibid. at 105. "'E-g. Volk v. Baldazo. 103 Idaho 570.65 1 P.2d 1 1 (1982). CJ Endresz v. FnPdberg. 24 N.Y.2d 478.248 N.E.2d 90 1-301 N.Y.S.2d 65 (N.Y.C.A.). No English, Canadian or Ausualian cases have apparently Whether an action can be maintained on behaif of a stilibom foetus is an interesting question to consider, in light of some of the concepnial problerns raised by the 'wrongful life' cause of action. Rather than asking whether it can be an injury or hann to be bom, as in the 'wrongful life' cause of action, the question in the case of a stillbom foetus, is whether there can be injury in not being However, although it is argued by some that there should be a legally protected "interest in being bom ali~e",~~~it is difficult to see how there can be injury in 'not being bom' because there is no living person in whose favour the right could in~re."~ Furthemore, there is a real risk that recognition of such an action would effectively provide *double recovery', given that the parents WU generaliy have their own cause of action.'" Those who argue for 'foetal nghts' daim that birrh is an arbitrary cut off point. However, conception and/ or viability is no less arbitrary.

1.6 Analysis of the Foreseeable PlaintifIf Approach

Ian Kerr argues that "[i]t is incorrect to Say that dthough the unborn child was not yet a person at the time of the accident, she was a foreseeable plaintiff. r, .118 He refers to the dictum of Lord Atkin in Donoghue v. Stevenson who restncted the duty to "persons who are so closely and directly affected by my act.. ." as evidence that a duty could not be owed to an

recognised a right of action for wrongful death on behaIf of a stillbom foetus: See B. Dickens, "Wrongful Birth and Li fe, Wrongful Death before Birth", supra note 56 at 104. Il3 It is also unlikely that the references in most 'survival legislation' inuoduced to overcome the common law mie that a cause of action dies with the person uses Ianguage that would allow a construction that would extend the application to a stillbom foetus. G. Tcdeschi, "On Tort Liability for 'Wrongful Life"' 1 Isr, L. Rev. 4 (1966) 513 ar 527, reprinted (1977) 7 J. Fam. L. 465 [cited to Isr. L. Rev.] at 527. 115 E.g. Del Tufo, "Recovery for Prenatal Torts: Actions for Wrongful Death" (1960) 15 Rutgers L.R- 6 1 at 77: "Protection from tonious injury should be afforded an interest in king born dive.".

'16 E.g. Tedeschi, supra note 1 14 at 528: "where the law recognizes the personality of the embryo on condicion only that it be born dive, and, for some reason or other, it is stillbom, there will be no one bearing damage, no one will be able to represent the claimant, "extend his personality as successor or generdly derive rïghts from him.". Il7 Prosser and Keeron on Torrs, supra note 64 at 369. 11s Ian R. Kerr. "Pre-Natal Fictions and Post-Partum Actions" (1997) Dal. LJ. 237 at 254. unborn child."' Clearly, at the time of writing his famous dictum in Donoghue v. Stevenson, Lord Atkin did not have unborn children in contemplation as potential p1aintiffs.'20 However, it does not necessady follow that unborn children are therefore excluded from the class of persons to whom a duty of care can be owed. The development of the law of negligence did not stop with the decision in Donoghue v. Stevenson; it was just begiming.

There is admittedly some residual doctrinai uncertainty that rernains in Anglo-American jurisprudence as to how the duty of care can be explained so as to give rise to liability for negligently infiicted prenatal injury without compromising the autonomy rights of prepant women. For instance, it has been noted that while king satisfied that a duty of care couId be owed to a child en ventre sa mêre, the English Court of Appeal in Burton v. Islington HA, did so "without determining the precise analytical route to reach that concl~sion.".~~'In his judgement, Dillon L.J. concluded that ".. .both [the minority and majority approaches in Wart v. Rama] .. . lead to the same conciusion and the differences between them are not ... significant. 9, .122

In Dobson (Lirigation Guardian ofl v. Dobson, the majority of the Supreme Court of Canada recently side-stepped the issue altogether saying simpiy that for the purpose of that case, it was "not necessary to resolve the differences apparent in the reasoning of Montreal Trantivuys and Duval.7, .123 Some American cases have even suggested that the duty might be analysed as a form of transferred negligence.'" However the duty is ultimately

Ibid. He concluded that "[c]onsequentiy, according to the principle as set out in Donoghue v. Stevenson. Gillard J- was wrong to say that "[tlhe unborn child should be included in the class of persons likely to be affected by [the driver's] carelessness.": Ibid at 253. 120 At the tirne of the decision in Donoghue v. Stevenson in 1932, Montreal Tramways had not been decided and as illustrated by the discussion of Walker, no right oFaction for prenûtai injury was recognised by either English or American Courts. "' Kennedy cC Grubb, sirpra note 4 1 at 935. '- Bunon v. IsIington HA.. supra note 43 at 230. Note that earlier, Dillon W. had referred with approval to the andysis of Winneke CJ. and Pape J.: Ibid at 228. 123 [1999] S.C.J. No.4 1 at para. 17 (S-CC)online: QL (SCJ.) [hereinafter Dobson]. laE.g. Renslow, supra note 72 at 1255. The Supreme Court of Illinois noted in obiter that because of the nature of the relationship beiween the parties in a 'derivative* action, such as chat of a husband or parent for the loss of the wife or chiIdTsservices, the law recognised a limited area of rransferred negligence whereby a wrong done to one person may invade the protected rights of another who is intimately related to the first). See also Prosser, forrnu~ated,~~~the foreseeable plaintiff approach arguably provides a suitable way to overcorne the injustices of a mle which would deny a chiId a right of action for prenatal injuries solely on the basis that she was not bom at the time of the wrong. It is also consistent with Enplish authonty such as Lord Wilberforce's statement in Anns v. Merton LBC,'~~expressing liability in negligence as extending to ailforeseeable harrn, uniess some specific policy reasons exist for negating the duty.ln

Ian Kerr purports to make a distinction between the negligent driving cases, such as Watt v. Rama and Duval v, Seguin, and the case of a defective baby toy that was neflgently manufactured before the child's conception or birth? According to Kerr, there is a cause of action in the defective toy case because the child was "an existing person" at the the she was injured by the toy.ln in the negligent driving cases, on the other hand, "[oln a strict temporal anaiysis of the facts, there is no cause of action ... because each child en ventre sa mêre was not yet a person at the tirne of the ~ollision.".'~True that in the negligent driving cases, the child was injured in utero, where as in the defective toy case, the child was not injured until after her birth. However, the cases show that this distinction goes oniy to the evidentiary issue of establishing causation in fact and is not a valid basis for denying legd liability in the negligent dnving scenario but not in the defective toy case.13'

Why should the chance timing of the child's birth prevent Iegal Liability in one case where the wron,oful conduct of the defendant in both categories of cases caused injury to a child that

"Pals,pf Revisited" (1953) 52 Mich, L. Rev. 1, at 20-22. However, it is unlikefy that a derivative claim for prenatal injury would or need be recognised as part of the common law by English or Commonwealth Courts in order to recognise the child's right of action for prenatal injury: E,g. J.G. Fleming, supra note 50 at 162. 125 J.G.Fleming, supra note 50 at 183, who considers rightly in this author's view, tfiat as between the approaches of the majority and minority in Wan v. Rama, "it is merely a point of doctrinal eclecticism" as to how the duty is explained. But c$ Kennedy & Gmb, supra note 41 at 935 and Ian. R. Kerr, supra note 1 18. 126 Anns v. Merton LBC [1978] AC 728(H.L.) at 751-52 per Lord Wilberforce. '" E.g. BDC v. Hofsrrrind [1986] 1 SCR 228 (S.C.C.): Tahro Properties v. Rowfing [tg861 1 NZLR 22(N.Z C.A.). Ian R. Kerr. supra note 1 18 at 253.

IZ9 Ibid. it must endure throughout its life? The important point for establishing legal liability in these cases is that at the time of the wrong, it was reasonably foreseeable that an unborn child might be injured by the defendant's wrongdoing. Whether the injury was in fact sustained at that iime or at some time in the future is immatenal provided the chiid was born alive so as to acquire the rights to sue for the injwy that it must bear throughout its Me. Kerr admits this in so many words when he says "[the fact that the child was injured once dive] is so only because a manufacturer is required to foresee that the ultimate consumer may not use the product immediately. 99 .132 Equally, a driver of a motor veinide is required to foresee "the presence on the highway of ... pregnant women" so that if he or she drives carelessly, an rmbom child rnight be inj~red.'~~

1.7 Continuing Wrongs & the Extension of Liability to Pre-Conception Torts: Jorgensen, Renslow & Bergstreser

Once it was accepted that the child need not have been bom at the time of the wrong in order to be foreseeable, there was no reason in principle why Liabiiity could not also arise in respect of a wrong that occurred before the chiid's c~nce~tion.'~The view that a child bom disabled as a result of a wrong committed prior to its conception should have a daim was endorsed by the English Law Commission in its Repon on Injuries to Unborn ~hildren,'~'and was later incorporated into the Congeniral Disabilities ~ct.'~The English Law Commission posed a hypothetical example of a manufacturer who negligently manufactures and markets a defective prarn, saying that it is no answer to the claim of the child under whom it collapses

"' E.g. See funher the reasoning of Winneke CJ. & Pape I. in Watt v. Rama, above at note 88 & accompanying texi. 132 Ian R. Kerr, supra note 1 18 at 253- 133 Watr v. Rama, supra note 6 1; Duval v. Seguin,supra note 92 at 434. '" See generaily Horace B. Robertson, 'Toward Rational Boundaries of Tort Liability for Injury to the Unborn: Prenatal Injuries, Preconception Injuries and Wrongfùl Life" (1978) Duke LJ. 1401-1457; A. Whitf?eld, supra note 98; Julie A, Greenberg. "Reconceptualizing Preconception Torts" [1997] 64 Tenn. L. Rev. 315. Supra note 36 at pans 75-78 & 93. Supra note 37 to the entent that the defendant's conduct Wfected either parent in their ability to have a normal. healthy child": S. 1(2)(a). that he did not exist at the time of its manufacture.'" According to the Commission, ''[slo far as the negligent act or omission itself is concerne4 it is of no consequence that it may happen before the plaintiff exists; the present common law mies easily comprehend this possibility.".'"

Dicta in the Australiau case of X. and Y. v. Pal, supports the proposition that no distinction should be made in prenatal injury cases based sole1y on when the wrong o~curred.'~The New South Wales Court of Appeal upheId a claim by a child bom disabled against a doctor who, when treating her mother prior to birth, failed to detect she was suffering fkom syphilis.140 Contrary to the approach of Ian Kerr, Mahoney I.A. made an aoalogy between a prenatal negligence case where the child was injured in utero and a case where the cMd is injured afier birth as a result of the negligent construction of a building pnor to its conception or binh.14' He concluded that ''Dliability in negligence does not depend upon the defendant being able, when the act or default occurred, to identify the person ultimately injured.9, .142 Sirnilarly, Clarke JA concluded that to deoy Liability to a child injured as a result of a pre- conception wrong "would .. . be contrary to authority and .. . lead to results in particular cases which would universally be considered unfair or unjust. r, .143

While there are few English or Commonwealth cases on point, Amencan Courts have, in a number of cases, allowed an action in respect of a pre-conception tort where the child sustains injury while in utet-o,Iu or upon its live birth.14' The first such case was Jorgensen

137 Supra note 36 at para 76. 138 Ibid. at pan 76. See dso A- Whitfield, supra note 98 at 44. '" Supra note 89. 140 Ibid. A similar claim succeeded before the German Supreme Court for damages for congenital syphilis caused by a negligently given blood transfusion to the mother before conception, the blood donor having suffered from the illness: Bundesgencht, 20 XII. 1952, Jurisrenzeirung, 1953,307 cited in G. Tedeschi, supra note 1 14. '" X. arrd Y. v. Pd. supra note 89 at 30. la' Ibid. 143 Ibid. at 37. (Meagher J agreeing). lu E.g. Where the child is exposed in rirero to harmful antibodies from Rh-blood misdiagnosis or an infectious disease such as rubeIla or where the mother's exposure to toxic substances results in the alteration of the v. Meade-Johnson Laboratories Inc, in which twin Mongoloid children were entitied to maintain a strict liability action against a pharmaceutical Company, alleging that their condition resulted from their mother's ingestion of defective birth control pills manufactured by the defendant." Holloway J. held that the pleading should not be construed as king limited to effects or developments before conception as they may have occurred while the foetus developed, He said,

If the view prevailed that tortious conduct occurring prior to conception is not actionable on behalf of an infant uttimately injured by the wrong, then an infant suffe~gpersonal injury from a defective food product, manufactured before his conception, would be without remedy. Such reasoning runs counter to the various principles of recovery which Oklahoma recognizes for those ultimately suffering injuries proximately caused by a defective product or instrumentality manufactured and placed on the market by the ~efendant.'"

In Renslow v. Mennonite Hospital, an infant could maintain an action against a hospitai and physician for injuries sustained as a result of negiigently transfusing its mother with the wrong Rh-blood type over 7 years pior to the infant's conception." As a result of transfusing the mother with Rh-positive blood, her blood became sensitised causing damage to the child's haemolytic processes and resulting in her premature birth with permanent damage to various organs, her brain and her nervous system- The Illinois Supreme Court held, by a majority of four judges to three, that the infant plaintiff was owed a duty of care notwithstanding that the large gap in time between the negligent transfusion and the child's

chromosomal structure of a subsequently conceived child- See further discussion of cases infra at notes 116 - 150, 183, 186 & 188 & accompanying text. See also discussion of preconception cases where the injury is sustained by virtue of the child's conception infra at notes 208 - 2 18 & accornpanying text,

IJ5E.g. Where the plaintiff s mother is unable to carry the plaintilf to ierm, For example, because her reproductive organs were damaged as a result of the defendant's negligence or where the child is injured during delivery. See funher discussion of cases infra notes 155, 162 & accornpanying text. For further discussion of this categorisation of preconception torts, see Julie A. Greenberg, supra note 134 at 349ff-

146 183 F2d 237 ( 1omCir. 1973) [Hereinafter logensen]. 147 Ibid. at 240. la Rerislow, supra note 72. conception and birtl~'~~In this way, the negiigent transfusion was effectively a continuing wrong, w hich crystdlised on the c hild' s birth with congenital disease.

The duty arose because the understanding of Rh-negative and Rh-positive effects upon the haemolytic disease of the newborn king known, it was reasonably foreseeable that a female transfusion patient would one day bear a child who would be permanently disabled as a resdt of transfusing the wrong blood type.'" Moran J. for the rnajonty concluded that it was "illogical to bar relief for an act done prior to conception where the defendant would be liable for this same conduct had the child, unbeknownst to him, ken conceived prior to his a~t-''.'~~ Moran J. further considered that the extension of duty to cases of pre-conception negiigence was suppoaed by sound policy reasons, in particular, the progress of medical science which led to the availability of techniques which cou1d mitigate, or in some cases, totally aileviate a child's prenatal

The three separate dissenting opinions in RensIow were aLl based on the argument that the rnajority unreasonably expanded the traditional boundaries of tort liability by opening the door to successive generations of plaintiffs making claims some 50 or 60 years after the tortious event- Ryan I. quoted Prosser that "liability must stop somewhere short of the freakish and the fanta~tic".'~He claimed that the majority, infiuenced by the "spread-the- nsk" doctrine had "abandoned the traciitional fault concept of liability prernised upon duty and foreseeability and embraced instead a system that depends whoiIy upon the element of causation.".'"

149 lbid. at 1254. Momn J. for the majority affirmed "'the utility of the concept of duty as a means by which to direct and control the course of the common Iaw.". '" Ibid. at 1253. See also Yeager v. Bloomingron Obsretrics and Gynoecology Inc (1982) 585 N.E. 2d 696 (Ind. C.A.): Kosky v. Trustees of Sisters of Charin>,supra note 83, both cases also involved the negligent transfusion of incompatible blood which caused damage to a child while in ritero.

15' Ibid. at 1254-55.

'" Ibid. at 1262. Ibid. at 1262-63. However, one year later in Bergstreser v. Mitchell, a child was held to state a valid cause of action under Missouri Law against two doctors and a hospital for injuries allegedly sustained as the result of a negligently performed Caesarean section on the cbiid's mother during a pervious birti~.'~~It was aiieged that as a result of the negligently performed operation several years before the p!aintiff's conception, the mother's uterus mptwed while pregnant with the plaintiff requirïng a further and premature emergency Caesarean during which the plaintiff su ffered hypoxia or anoxia, resulting in permanent brain damage. '"

1.8 The Wo Duty9 Rule & Successive Generation Claims: Albah & the 'DES Granddaughter' Cases

Notwi ths tanding the precedents set b y Jorgensen, Renslow and Bergstreser, the New York Court of Appeals in Albala v. Cis,af New York denied recovery to a child born injured as a result of damage to his mother's utems during a negligently performed abortion four years earlier.'" In what has been criticised as a "thinly reasoned case9, ,158 the Albala Court declined to consider the concepts of duty or foreseeability, and instead created a policy-based rule that no cause of action would lie for negligence ailegedly attributable to acts or omissions occurring pnor to a plaintiff's ~once~tion.'~'The Court feared that recoanition of pre-conception torts would "require the extension of traditional tort concepts beyond manageable bounds 99. 160 Among other tbings, the Court was concemed that there wouid be a proliferation of claims by future generations of geneticdy mutated children resulting from toxic chetnicals or radioactive waste if Liability was imposed for preconception tord6'

In Ibid. 'Hypoxia* is a deficiency of oxygen reaching the tissue of the body: -anoxia' is severe hypoxia resulting in permanent damage: Ibid. at 24 n.1,

'57 54 N.Y.2d 269.445 N.Y.S.2d 108,429 N.E.2d 786 (198 1) [Hereinafter Albala cited to N-Y-2dJ. 's Prosser and Kearon on Tons, supra note 64 at 369.

Is9 Albala, supra note 157 at 273-275. IMlbid ai 27 1-72. See also Cathenvood v. Amencan Ste~liierCompany 130 Misc. 2d 872.498 N.Y.S. 2d. 703 (N.Y. Sup. Ci. 1986) (applying Albala to deny recovery for infant plaintiff bom with chromosomal damage allegedly caused by his mother's workplace exposure to ethylene oxide prior to conception), aff d 126 A.D. 2d. 978,51 I N.Y.S. 2d 805 (N,Y.App. Div. 1987). 161 Ibid. See also Prosser & Keeton on Torts, supra note 64 at 369. Just such a case arose before the same Court a decade later in Entight v. Eli Lilly & ~0.l~~ The New York Court of Appeals had to decide whether the Iiability of manufacturers of the dnig Diethylstilbestrol (DES)should extend to the granddaughter of a woman who ingested the dnig several decades eariier, a socalled 'third generation' plaintiff .'" The plaintiff was born suffering from cerebral palsy and other disabilities that she aileged were attributable to her premature birth which in turn resulted from damage to her mother's reproductive organs from when her mother was exposed to DES while in uter~.'~

The background to the DES cases was surnmarised by the Court in ~nri~ht.'~Between 1947 & 1971, DES, a synthetic estrogen-like substance produced by approximately 300 manufacturers, was prescribed for use and ingested by millions of pregnant Amencan women to prevent rniscamiages. In 1971, the U.S. Food and Drug Administration banned the dnig's use for this purpose after studies established a iink between in utero exposure to DES and the occurrence in teenage women of a rare form of vaginal and cervical cancer. In utero exposure to DES has since also ken linked to other genital tract abnormalities in DES daughters, including malformations or immaturity of the uterus, cervical abnormalities, rnisshapen Fallopian tubes and abnormal ceil and tissue growth- These occurrences have alIegedIy resulted in an increase in the incidence of infértility, miscamiages, premature births and ectopic pregnancies in the target population.'"

American Courts and Legislatures removed legal barriers to recovery for the so-called 'DES daughters' "because of the ways in which DES was developed, marketed and sold and because of the insidious nature of its hm.~167 For example, the New York Legislature arnended the statute of limitations to provide that the limitation period begins to run in

77 N.Y.Zd 377.568 N.Y.S.2d 550,570 N.E.2d 198 (1991) [Hereinafter Ennght cited to N.Y.S.]. 163 Ibid. la Ibid. Ibid. at 552. '" Ibid 167 Ibid. exposure cases upon discovery of the injury.'" The New York Court of Appeal in Hjmowitz v. Lie & Co., took the unprecedented step of holding that iiability could be imposed upon DES manufacturers in accordance with their share of the national DES market in order to overcome the difficulties in identifying the particular manufacturer at fault.'"

Nevertheless, the New York Court of Appeal in Ennght, refused to extend Liability to third generation plaïntiffs for injuries aiiegedly caused by their premature biah as a result of damap to their rnother's reproductive organs from their in utero exposure to DES? Although the case was strictly a case, the Court considered that the policy reasons for denying recovery were no different €rom those in ~lbala."~The Court said that the public interest in providing a remedy for those injured by DES was not stronger than the public interest in providing a remedy for those injured by .'" Accordingly, "a DES case does not by itself justify a departure from the Albala rule. 99 .173 The majority feared that "the rippling effects of DES exposure may extend for generations" and concluded that it was their "duty to confine Liabiiity within manageable iimits" by "[I]irniting liability to those who ingested the drug or were exposed to it in ~tero"."~

Preconception torts, and in particular successive generation toxic tort cases such as the 'DES granddaughter' cases, rnay raise difficult issues of foreseeability, proof and remoteness of

168 Ibid.

Ib9 (1 989) 73 N.Y. 2d 487-541 N.Y.S.2d 94 1.539 N.E.2d 1069 cert. denied 493 US. 944, 1 10 S.Ct 350. 107 L.Ed.2d 338. See also Bichier v. Lilly & Co., 55 N.Y.2d 57 1,450 N-Y.S.2d 776,436 N.E.2d 182. 170 Enrighr, supra note 162. 171 lbid. at 553. The Court concluded, "In sum, the distinctions between this case and Albaia provide no basis for a departure frorn the nile that an injury to a mother which resulls in injuries to a later conceived child does not cstablish a cause of action in favour of the child against the original tort-feasor.": Ibid. at 556. The following cases which similarly denied liability to 'DES' granddaughters but on the bais of legai principle: Sorrelis V. EZi Lilly & Co.. 737 F-Supp-678 (Col. 1990)(D€!3 Manufacturer owed no duty under Maryland law); Grover v. Eli Lilly 9; Co.. 63 Ohio St.3d 756,591 N.E.2d 696 (1 992) (Injury to 'DES Granddaughter' was not foreseeable).

17= lbid. 173 lbid. at 554. 174 Ibid. at 555. damage.'" However, by judicially imposing a blanket 'no-duty' rule for prenatai injury cases involving preconception wrongs, the New Court of Appeal effectively created an arbitrary boundary in the law of prenatai torts that it so vehemently sought to avoid by its decision in Albala. Surely, it would have been preferable for the Albala Court to apply the principles of the law of negligence as developed by Angio-Amencan Courts since Bonbrest v. Kotz to the cases at hand and leave it to Parliament to introduce legislation prohibiting the actions if poticy so requires.176 In a strongly worded dissent in EnBght, Hancock J claimed that there was "no basis in law or social policy or any principled reason in justice and fairness" for excluding the plaintiff fkom the class of persons permitted to recover for injuries caused by DES.'"

Hancock J. found none of the three main policy reasons reiied on by the majority to deny the plaintiff s claim, compeiiing, In relation to the 'floodgates of Litigation' argument, he referred to the same Court's admonition in a different context that it was not a "ground for denying a cause of action that there wiil be a proliferation of claims79 . 178 He said by denying the claim, the Court was effectively saying to these defendants that "in deciding whether a dmg is 'safe' you may completely ignore the havoc a particular dnig may wreck on a funire generationC.1 r>. 179

He also rejected the argument that permitting a cause of action could cause over-deterrence by discouraging research or withholding "beneficial dm&' from the market. Specific deterrence was inconsequential in the case of DES, which ceased to be marketed and rnanufactured years exlier and even if deterrence was relevant, the development of unsafe drugs is no Iess worthy of the goal in the case of damage to a third generation plaintiff than to

175 E.g. See generally, Tracey 1, Batt, "DES Third-Generation Liability: A " ( 1996) 18 Cardozo L. Rev. 12 17. 176 For example, the English Law Commission in Repon on Injuries to Unborn Children. supra note 36 at paras 79-80 recomrnended hat "there should be no clairn for pre-nad injury othenvise than at the suit of the frrst gencntion.". See aIso infra note 206 & accompanying text- 177 Enright, supru note 162 at 557. See also Melissa L. Mascaro. "Preconception Tort Liability: Recognizing a Strict Liabiiity Cause of Action for DES Grandchildren" (1991) 17 Am. J.L. & Med. 435. a second." Findly, Hancock I. dismissed the suggestion that generational line drawing was proper because the manufacturers' exposure to iiability was 'cornmensurate with the risk created' as having the ''ring of an economic cost-benefit anaiysis99 .181 If there were economic and social considerations which required there to be some arbitrary cut off in cases of this kind, the legislature should deal with it, and the New York legislature had not done so.'"

1.9 The Resurrection of Liabiiity for Pre-Conception Wrongs: Monusko, McNulty & Lough

AI1 other Amencan States that have considered the question have not been persuaded by the Albala Court's reasoning. In Monuska v. Postle, the Michigan Court of Appeals irnposed a duty on a physician to a chifd born with congenital rubeila syndrome for his failure to test and immunise the child's mother who had visited the physician specificaily for his assistance in conceiving a child." The issue was whether a child born dive had a cause of action for injury arising out of preconception negligence and was one of fmt impression in Michigan. The Court rejected the reasoning of the Albala Court and held that the defendant owed a duty to Andrea, even though she was not conceived at the time of the alleged wrong.'" The Court noted that the tests and immunisation for rubella were "reiatively simple and straight-forward to adrninister" and that it was "readily foreseeable that someone not immunised may catch rubella and, if pregnant, bear a child suffering frorn rubella syndrome'7 .185

More recentl y, in McNuls, v, McDowell, the Supreme Judicial Court of Massachusetts held that a child born with congenitai birth defects resulting from its mother's contraction of rubella during pregnancy could not recover against a physician for allegedly failing to test

180 Ibid. at 559. 181 Ibid. ibid. at 560,562. 437 N.W.2d 367 (Mich-App. 1989). 1M Ibid. at 370.- '= Ibid. Dodge J.. dissenting, considered that whiIe it was foreseeabie that the mother would conmct rubeIla, it was not foreseeable that she wouId be pregnant at that time. Ibid. at 37 1. and vaccinate the mother during a pre-conception visit.'= However, the Court declined to adopt a rule that the duty owed by a physician rnay never extend to those not yet conceived. The Court considered that there was no duty on the part of the physician to have the mother irnmunised against rubella in the case at bar because the mother did not consult the doctor for prenatal care nor did she have any intention at that stage of conceiving a child. In fact, she consulted the physician for contraceptive advice. In these circumstances, the Court concluded that "[wlhile the elernents necessary to establish a duty to a later conceived child are difficuit to specify in the abstract, the sparse contacts between Keri Am's mother and McDowell and the fact that these contacts were made not in anticipation of preguancy, but rather to avoid it, are insufficient to establish such a duty. 9, .187

In bugh v. Rolla Women's Chic, the Missouri Supreme Court held that a medical laboratory owed a duty to an unconceived chiid to correctly record its mother's blood type during pregancy so that medication could be administered to suppress her immune system response to fbture children bom with Rh-positive blood.'" Taylor was bom with a condition diagnosed as erythroblastosis fetalis, or EBF in which he sustained "devastating pulmonary, cardiovascular and neurological damage" as a result of the sensitisation of his mother' s Rh- negative blood to his Rh-positive b~ood.'~~The condition could have been avoided if his mother had ken administered with the dmg Rh- after her previous pregnancy.lm The issue of whether liability may arise for prenatal injury from a preconception wrong was one of first impression in ~issouri.~~'

Hostein J., for the majority, dismissed as "speculation" the concerns of the New York Court of Appeal in Albala, that liability would not be confined to manageable boundaries if pre-

187 Ibid. at 906-907. See also Hegyes v. Unjican Enterprises Inc (199 1 ) 286 Cal Rptr 85 (Cal CA-) (Driver who collided with female motorist owed no duty of care to child who sustained injuries several years later when born premature as a result of pressing of shunt fitted to his mother after the accident). 188 866 S.W.2d 85 1 (Mo-banc. 1993). See also Empire Casualy v. Sr. Paul Fire and Marine Ins. Co., 764 P.2d 1 1 9 1 (Co. 1988); Walker v. Rinck, 604 N-E,2d 591 (Ind. 1992). 189 Ibid. at 852. 190 Ibid. conception torts were permitted.'n He said there was no indication that the Amencan States that had permitted recovery for pre-conception torts had ken "swaiiowed by the kind of ,, L93 apocalypse of liability envisioned by the Albala corn. . He concluded that it would be "unjust and arbitrary to deny recovery to Tyler simply because he had not been conceived at the time of [defendant's] negiigence. ,r .194

1.10 The Prospect of Parental Liabüity for Prenatal Injury: Dobson etc.

Claims for prenatal injury against thùd party tortfeasors have sometimes been rejected on the ground that allowing the action would open the doors to a 'flood of Litigation' by injured children against their parents for 'life style' choices before or during pregnancy.u5 However, most Courts that have considered the issue have nghtly rejected this argument.'% The availability of an action for negligentiy infiicted prenatai injury has not resulted in a manifest increase in cases by children against their parents.1w Even if it did, it is open to the Courts, or perhaps more appropriately the legislature, to disailow children from suing their parents for prenatal injury on policy grounds without affecting the right of children to bring such actions against third party tortfeasors.

This is precisely what the English legislature has done, where foilowing the recornmendation of the English Law ~ommission,'" the Cungenital Disabiiities Act creates an exception for liability for prenatal injury caused by a pregnant woman to her unborn child, who is

191 Ibid. ar 853.

19' 19' Ibid. at 254. 193 Ibid.

'% Ibid 195 E.g. Fleming, supra note 50 at 184. 196 E.g. See the dissenting opinion of Dobbs J. in Monuska v. Posrle, supra note 183. Lord Justice Dillon in Walker v. C.N.R. Co of Ireland rejected the argument of the Health Authorities that allowing an action for prcnatal injury would introduce a danger of conflict between the mother and her child. 197 E.g. See genenlly, David S. Steefel. "Preconception Torts: Foreseeing the Unconceived" (1 977) 48 University of Colo. L. Rev. 621 at 632. 198 Repon On Injuries to Unboni Children. supra note 36 at para 53-65. subsequently bom alive.leJ Some American common law jurisdictions also retain a doctrine of parenrai irnniuni&OO The traditional arguments offered in support of the 'parental immunity' doctrine in Arnerica are fear of and collusion, preservation of intra-famiiy harmony and parentai auth~rit~?~'At the same time, there is increasing medical evidence on the harrnful effects of excessive consurnption of alcohol, tobacco and other clnigs on the developing foetus and attitudes may change so as to aUow an action on behalf of a child once bom in such a caseS2O2

The Supreme Court of Canada aiso recently held that plicy reasons relating to the privacy and autonomy rîghts of women and difficulties in articulating a judicial standard for the reasonable pregnant woman negated any duty owed toward her foetus for negligently inflicted prenatal inj~ry.~~.'However, oddly, the Canadian Supreme Court did not limit its decision in Dobson to the particular facts, narnely, the case of negligent driving by a pregnant wornan causing her child to be born with permanent injuries.*04 Unlike in England, the fact that the child in Dobson was trying to get to the 'deep pocket' of the insurance company by suing its mother whose negligent driving caused the child's congenital disabilities was not sufficisnt for the Canadian Supreme Court to allow an exception for negligent driving cases. 205

However, the better approach may have been to allow the child to recover against the insurance company on ordinary tort prînciples, the majonty never disputing that this was not

199 Supra note 37 at S. 1 ( l), s.2. However, there is a 'came out' in the case of the mother's negligent driving. See also the Farnily Acr 1990 (Ont.) s.66. LOO However, 'parental immunity' has now ken abolished in some American jurisdictions: See genedly, Comment, 'The 'Reasonable Parent' Standard: An Alternative to Parent-Child Tort Immunity" (1976) 47 U, Colo. L. Rev. 795. MI Prosser & Keerort on Torrs, supra note 64 at 905.

20' E.g See J.K. Mason. I.K. & RA. McCail Smith, (4th ed.) Law and Medicuf Erhics (London: Butterworths, 1994) at 127, 136. m3 Dobson. sicpra note 123 at paras 24 ff., 76. Major & Bastarache IJ dissenting. 201 The child in Dobson was born with cerebrd palsy.

'05 16id. at para 7 t ff. The majority said that the availability of insurance is irrelevant to the determination of Iegal Iiability at para 74. See also Staflman v. Youngquisr, 53 1 N.E-2d 355 (1988) (Sup. Ct. Ill.). But cf: Lynch v. Lyncft(1991) 25 N.S.W.L.R. 41 1, 14 M.V.R. 521, [1991] Aust Torts R. 69,355 (N.S.W. Supr, CL C.A.); Bortre v. Bonre. 6 16 A.2d 464 (N.H..1992). a deserving case, leavinp it to Parliament to exclude pregnant women from liabiiity for other prenatal torts on policy grounds. This was essentiaiiy the argument of Major 3. dissenting, with whom Bastarache JJ agreed, when he concluded that "the removal of Ryan Dobson's right to sue in tort for negligenr viola~ionsof his physical integriry Les within the exclusive purview of the Iegislature, subject to the limits imposed by the Canadian Charter of Rights and ~reedoms.".'~~In the end, the majority chose to create the public policy exception themselves, leaving it to Parliament to create a further exception if they were to dow children to recover from injuries sustained in utero as a result of their mother's careless c~rivin~.~~~

1.11 Where the Wrong Incidentally Causes the Child's Conception or Birth: The Intersection with 'Wrongful Life' Actions

The prenatal injury cases discussed so far cover a broad range of factual scenarios, includinp where the wrong occurred while the child was in utero, before the chiid was conceived, or even during the biah process? However, a further type of prenatal injury case arises where, in addition to the congenital disability or disease of which the child cornplains, the defendant's wrong causes or brings about the child's conception and/ or birth. in other words, "the act of A, which B claims injured him, is the very act but for which B would not exist.9, .209 These cases have become known as 'wrongful life' cases-

= fbid. at para 133 [emphasis added]. Major J funher explained at para 1 16, *Vherea pregnant wornan already owes a duty of care to a third party in respect of the same behaviour for which her born alive child seeks to find her liable, policy considerations pertinent to the pregnant wornan's freedom of action cannot operate so as to negative the child's prima facie nght to suc.". Major J acknowledged that the situation may weIl be different where the pregnant woman does not owe a duty of care to third parties, such as in respect of Iifestyle choices, such as smoking, drinking and dietary decisions as welI as other activities, for example, bungy jumping: Ibid. at para 1 19. See also paras 1 1 1- 1 12. In this respect, it is difficult not to notice the impact of the various pressure groups, such as the Canadian Abortion Rights Action League, who intervened in the case, apparently hurtling the decision into a realrn beyond the facts of the particular case. The other interveners in the case were the Evangelical Fellowship of Canada and the Catholic Group for Health, Justice and Life. mi A different way to classify the prenatal injury cases. according to when the injury was in fact sustained is discussed at supra at notes 144 & 145 & accompanying text.

'OY G. Tedeschi, supra note 1 14 at 528. See funher Chaptcr 4 below. To date, 'wrongful life' cases have tended to arise where there is an debation of negligence in prenatal screening, treatrnent or advice. However, with the growth in the new reproductive technologies, these cases are also likely to anse in the fiiture in the context of fertility treatments.2" Cognisant of this fact, the English Parliament recently extended the coverage of the Congenital Disabilities Act to fextiiity treatments when it introduced new section 1A into the Act by section 44 of the Hurnan Fertilisation and Embryology Act 1990 (U-KJ New section 1A purports to create a scheme of liability identicaI to that created by section 1 of the Congenital Disabiliries Act. The Section makes a person liable for a rhild's disabilities resulting from the negligent 'selection', 'keeping' or 'use' 'outside the body', of the embryo or garnetes used to produce the embryo, placed in the mother where neither parent knew of the rïsk thereby created of their child king bom di~ab1ed.f~~

In its Report on lnjuries tu Unborn Children, the Engiish Law Commission posed a hypothetical scenario: "If a man suffering from syphilis has intercourse with a woman without telling her that he is infected, ought the child resulting fiom the have a cause of action against him?tr .212 Altematively, could a child have a civil action against its biological father for congenital disabilities caused by consanguinity from the rape by the child's father of the child's mother, who was the defendant's daughter?'13

Taking out of the equation the difficult policy issues of allowing a child to sue her parents, consider the situation where the defendant is a third party physician. In a recent Canadian case, a child sued his parents' physician, who negligently misadvised them that the fact they were first cousins would not create a risk that they would have a child with congenital birth

"O D. Gicsen, International Medical Malpractice Law: A Comparative Law Study of Civil Liability Arising from Medical Care, (Dordrecht: Tübingen Martinus Nijhoff Publishers, 1988) at 90, margin 126.

211Kennedy & Grubb, supra note 41 at 953-4. Ss. IA(1) & (3). "'~u~ranote 36 ai para 88. See also X. and Y. v. Pal, supra note 89. involving the negligent transmission of syphilis. "'E-g. Pascoe (Cumtor Bonis on (AP) v. UK (Criminal injuries Compensation Board) [ 19961 SCOLS. No. 241 (Scot. Ct-of Session Outer House) online: QL (SCOT) [hereinafter Pascoe]. For a discussion of this case, see infru note 665 Bt accorripanying text. defects from consanguinity?" Suppose htrther that a sperm bank or fertility chic was negligent in fangto adequately screen sperm for syphilis, hepatitis C or the HIV virus?"

In ail these cases, it seems consistent with the development of the law in the prenatal injury cases discussed so far, as well as policy, that the child should have an action. In relation to the syphilis scenario, the Law Commission concluded that the child should have a remedy in such a case, not for the fact of king born, but for the disabiiity itself? Adrian Whitfield argues that there is justice in the Law Commission's concl~sion.~"He says, "It hardy lies in the mouth of one who has caused a disability to say that it is non-compensatable because he also caused the Iife which bears the di~ability''?~' However, as we shali see in the discussion of the 'wrongfül life' cases in the following chapters, Anglo-Amencan tort law makes a fundamental distinction between those prenatal injury cases where the defendant's wrong incidentally causes the child's existence and those where it does not, It is to these cases and an anaiysis of the justification of this distinction that we now turn.

21.1 E-g. Bosard v. Davey [ 19981 MJ. No. 524 online: QL (Man. Q.B.).

=15 E-g. Stiver v. Parker, 975 F.2d 26 1 (6h Cir. 1992)(surrogate rnother gave birth to a child with genetic defects caused by venereal disease transrnitted through the donor's sperm). An alternative possibility worth considering in rhese cases is bringing a product liability clairn: See generaIly, Megan D. McIntyre, 'The Potential for Producs Liability Actions When Artificial Insemination by an Anonymous Donor Produces Children with Genetic Defects" (1994) Dick. L, Rev, 97. 216 Supra note 36 at paras 88.91. =" A. Whitfield, supra note 98 at 49. Ibid. CHAPTER 2: THE 'WRONGFUL LIFE' CAUSE OF ACTION BEFORE ANGLO-AMERICAN COURTS

"Although no longer shackled by the conceptual difficulties fomerly posed by a 'wron3g$d death' action, courts have again been drawn toward the murky waters at the penphery of existing legal theory to test the validity of a cause of action for what has been generically termed 'wrongN life T -,9219

"If in the pst compensation has been re uested for life taken away .. . now

compensation is requested for life given.T,&

2.1 Early 'WrongN Lue' Cases: Zepeda, Williams v. S#e

The tenn 'wronbg$d life' was fmt coined in a 1963 Iliinois appeilate court opinion, Zèpeda v. Zepeda, as a 'dismissive parody' on the 'wrongful death' cause of action? A child plaintiff claimed that his defendant father had injured him by inducing his mother to have sexual relations out of wedlock causing hun to be bom an 'adulterine bastard'.u2 The Court denied recovery to the child on the basis that the action would be so far-reaching that public policy required that Parliament, rather than the Courts, should declare it.= The Court said, "Recognition of the piaintiff s claim means creation of a new tort: a cause of action for wrongful life. The legal implications of such a tort are vast; the social impact could be staggering. .. . Without stimulating them, we may have suits for wrongful life just as we now have for wrongful death-9, .224

What is interesting, and often overlooked, about the decision in Zepe& is that notwithstanding the ovemding public poiicy concems that would eventually persuade the Court to deny the action, the Court found that the plaintiff s cornplaint prima facie alleged

219 Becker v. Schwanz. supra note 1 1 at 808. rn Zeirzov, supra noce I at 885. "' 4 1 Ill.App.2d 240. 190 N.E.2d 849 (111. App. Ct. 1963) cen. denied 379 U.S. 945,85 S.C. 444, 13 L.Ed.2d 545 ( 1 964)[hereinafter Zepeda cited to N.E.2dI. vn - Ibid.

-3 Ibid a1 859. The Court said. '*If we are to have a legal action for such a radical concept as wrongful life. it should corne aftcr thorough study of the consequences- This wouid be so even if the new action were to be restricted to iltegitimates or even adulterine illegïtimates.": Ibid the commission of a tort- The Court concluded that the conduct of the father was "not onty a moral wrong but was, under the aggravated circumstances of this case, tortious in its nature. 9. .225 The Court concluded that there was nothing unusual about the fact that the defendant's wronb$ui act simultaneousIy resulted in the conception and injury of the plaintiff.u6 The Court reasoned that "if recovery is to be permitted an infant injured one month afier conception, why not if injured one week after, one minute afier, or ut the moment of conceprion.37' -227

The Court said that "it would be pure fiction to Say ttiat the piaintiff suffers no injury" for "[tlhe lot of a chiid bom out of wedlock ... is a hard one."? While the injury was not as tangible as a physical defect, it was as r~al.~However, the Court also said that the plaintiff s cornplaint was essentiaily that "he was bom and that he is" and therein lay the difficulty which gave rise to the conclusion that there were ovemding policy considerations which would preclude recognition of such a c~aim.~Curiously, however, the Zepeda Court could have characterisecl the child's cornplaint as his illegirimate status rather than the fact of his birth, in light of the theoretical possibility that the father might have rectified the wrong by divorcing his current wife and rnarrying the child's mother, thus legiiimising the child?

Three years later, a similar case came before the New York Court of Appeals in Williams v. srare.*' The infant plaintiff s mother was raped while in a State mental institution giving rise to the daim that the plaintiffs conception and birth as an illegitimate child was the

Ibid. at 852. Ibid. at 855.

"? Ibid. at 853 [Emphasis added]. 2% Ibid. at 856.

229 Ibid. at 857. 30Ibid. The Court said the plaintiff was "protesting not only the act which caused him to be bom but birth i tscl f.": Ibid 23 1 E.g. Mark Strasser. "Wrongful Life, Wrongful Birrfi, Wrongful Death. and the Right to Refuse Treatment: Can Reasonable Jurisdictions Recognize AI1 But One?" (1999) 64 Mo. L-Rev. 29 at 36-37.

=' William V. Srare 223 N.E-2d 343. 18 N.Y.2d 48 1.25 App.Div.2d 906.269 N.Y.S.2d 786 (1966) [hereinafter Williants, cited to N.E.]. proximate result of the State's vicarious negligence. The child clairned she was 'depnved of a normai childhood and home life; of proper parental care, support and rearing and caused to bear the stigma of illegitirnacy.r .233 The New York Court held that the Iaw knows of no 'wrong' to a later-bom child caused by perrnitting a woman to be violated ond to bear an out of wedlock infant? The Court observed,

if the pleaded facts are true, the State was grievously negiectful as to the mother, and as a result the child may have to bear unfair burdens as have many other sons and daughters of shame and sorrow. But the law knows no cure or compensation for it. .. . Being bom under one set of circumstance[s] rather than another or to one pair of arents rather than another is not a suable wrong that is co,onisable in court. d

Judge Keating delivered a separate, but concurring, judgement - using reasoning which would be echoed in numerous 'wrongful life' cases to corne. His reasons for refushg the action were not based on a fear of creating a new cause of action, the fact that the child was not in being when the alleged tortious act occurred or on a "misguided fear of the possible ramifications of a decision permithg recovery." . U6 Rather, "[t] he measure of damage which [the plaintiffJ is really seeking is based upon a cornparison of the position she fin& herself now and the position she would have been in, had she been born legitimately. Quite obviously, that is an unwarranted cornparison here, for, had the State acted responsibly, she would not have been born legitimately - she would not have been born at dl.,, .237 Accordingly, it was impossible to determine the darnage for which the State was responsible, and for that matter, whether the defendant caused her any injury at dl?

a Ibid. ai 343. Ibid. ai 344. See also the similar cases of Cowe v. FomGroup Inc 575 N.E. 2d 630 (Ind.. 1991) ) & Foy v. Greenblotr, 190 Cal. Rptr. 84,89 (Ct. App, 1983). 35fbid. at 344. See aIso Sfills v. Grarton 55 Cal.App.3d 698, 127 Cal-Rptr. 652 (Cal., 1976).

'j6 Ibid. L37 Ibid. at 345. = lbid. 2.2 'Wrongful Life' & 'Wmngful Birth9Actions in ~merica~~:The Legacy of Gleimtan

Gleihnan v. Cosgrove was the fmt recorded 'wrongful life' case where the child's cornplaint was her physical or mental disability as opposed to her social stat~s.~A child who was born deaf, mute and nearly bhdas a resuit of exposure to rubeila (German Measles) in rctero brought an action against his mother's physician for negiigently advising her there was no risk that her exposure to the virus during pregnancy would harm the foetus. The parents also brought a 'wrongful birth' action. Had the mother known of the risk to her foetus, she claimed she would have terminated the pregnancy. The New Jersey Supreme Court disrnissed both the child's and the parents' claim.

The Court distinguished the child's daim fkom the daim of the child bom with congenital rubella syndrome in Syfvia v. ~obeille."' In Syfvia. the defendant allegedly codd have prescribed the rnother gamma globulin to decrease the lïkelihood that the child would have been born disabled whereas in Gfeitman, the child did not allege anything the defendant could have done to reduce the chance of her being bom ciisab~ed?~Accordingiy, the child in Gleitnian never had the chance to be bom healthy, only not ro be b~nt?~The Court also used this reasoning to distinguish the child's daim from the claim in the New York case of

239 The vast majority of 'wrongful life' cases have occurred in the United States and for reasons of brevity, only appellate Coun decisions will be considered- 240 Gleirntan v. Cosgrove supra note 10. 241 fbid. at 69 1. For a discussion of Sylvia v. Gobeille, see supra note 74 & accompanying text, 3'"fbid. 243 Ibid- Chicf Justice Weintnub, who would have allowed the parents clairn but not the chitd's, similarly said chat the only choice for the child plaintiff was "between a worldly existence and none at all.": Ibid at 71 1. Smith v. ~rennan,~which held in the context of an ordinary prenatal injury case. that "a child has a legal right to begin Mewith a sound rnind and body.".us

The Court concluded that the child's claim was not actionable because it did "not gïve rise to damages coapisable at la^.".^ However, the GIeitman Court arguably confiates the issue of identifjring the injury or damage in a 'wrongful life' case with the supposed difficulty in the assessment of such damages, which is a separate issue. The Court said it was "1ogicaUy impossible" to measure the child's damages on traditionai tort principles, which required a comparison of the child's "life with defects against the uner void of non-existen~e".~' The Court concluded therefore, that "[bly asserting that me] should not have ken born, the piaintiff makes it logically impossible for a court to measure his aüeged damages because of the impossibility of making the comparison required by compensatory remedies."? As it turns out, this wouid be a lasting confusion in terrns of the way future Courts have anaiysed the 'wrongful life' action.

However, the confusion does not end with the child's claim. The Court also rejected the parents claim for 'wrongful birth' because "the right of their child to Live is greater than and precludes their right not to endure emotional and financial injury.99 .249 The Court referred to the perceived dificulties in the assessment of the parents' damages, which would require the Court to weigh the emotional and financial bwdens to the parents against the "unmeasurable, and complex human benefits of motherhood and fatherhood"? Even if such damages were cognisable, the Court said the parents' claim would be precluded by countervailing public

244 Supra note 72. See also discussion supra note 77 and accompanying text. "'Gleitnmn. supra note 10 at 692. 246 Ibid. SI7 Ibid. at 692. [Emphasis added]. xsIbid. The decision was decided by a majority of 3:2. Note that the New Jersey Supreme Court has since partialiy rctreated from its position in Gleitman in Procanik v. Cillo. supra note 10. See further below at notes 327-330 & accompanying text, policy which would "prevent this Court from aiiowing tort damages for the denial of the opportunity to take an embryonic life. ,r .251

In what is often quoted out of context as if it were part of the Court's reasoning for denying the child7s action for 'wrongful life', the Court said in relation to the parents claim, "It is basic to the human condition to seek Me and hold on to it however heavily burdened" and that "[TJf Jeffrey could have been asked as to whether his life should be snuffed out before his full term of gestation could run its course, Our felt intuition of human nature telis us he would almost surely choose Iife with defects as against no Iife at dl.99 .252

Glehan was decided before the landmark American Supreme Court case of Rue v. Wade, which held that women have a constitutional right to an abortion dunng the fmt trimester of pregnancy.m Partiy as a result of that decision, most Amencan Courts since Gleimtan have been more receptive to the parents 'wrongful birth' claim. In addition, policy reasons have now been advanced supporting judicial recognition of the parents' claim, such as vindicating the social interest in reducing the incidence of birth defect~.~and deterrence of medical malpractice involving the provision of inadequate genetic counsel~in~.~~

AccordingIy, thzre is now virtually unanimous agreement by those jurisdictions that have considered the issue, that the parents in a successful 'wron,ofui birth' action should be permitted to recover at lem their pecuniary iosseslZS6and in some instances, also damages

"' Ibid.

s2Ibid The Court continued. *Theright to life is indienable in ow society. A court cannot Say what defects should prevent an embryo from king allowed life such that denial of the opportunity to terminate the existence of a defective child in embryo can support a cause for action.": Ibid, "Roe v. Wade (1973) 410 US. 113,93 S.CL 705.35 L.Ed.2d 147. See also Thornburgh v. American College of Obserricians and Gynecologisrs 106 S.Ct. 269.90 L.Ed2d 779 (1986). 253 E.g. Blake v. Cruz, supra note 10 at 3 18. See aiso Note, "Father and Mother Know Best: Defining the LiabiIity of Physicians for Inadcquate Genetic Counseling*' (1978) 87 Yale LJ. 1488. 352 Bennan v. Allan, supra note 1 1 at 14. See also Gildner v. Thomas Jefierson Univ- Hospital, 451 E Supp. 692 (E.D. Pa- 1978); Blake v- Cruz ibid. at 3 18- 19. 36 E.g. Schloss v. Miriam Hospital. supra note 9(Tay Sachs dises); Garrison v. Medical Center of Delaware Del-Suprsupra note 14; Walker v. Mart, supra note 14 at 738; Siemieniec v, Luthercln Gen. Hosp. supra note 19): Sntirh v- Cote, supra note 10; Fassoulas v. Ramey, 450 So.2d 822 (S.CL Ha. 1984); Becker v. Shwanz supra note 1 !; Robak v. Utiited States, 658 F.2d 47 1 (7" Cir. 198 l)(construing Alabama law). for emotional distre~s.~Even New Jersey has reversed its position, fmt allowing parents a claim for emotional distress and later for the pecuniary losses attributable to the child's impaired condition.258 North Carolina, Missouri and Georgia are the oniy Amencan States that have so far rehised to recognise the action.u9

In contrast, however, with the exception of a few lower court decisions subsequently over- tumed in New ork km and ai if or ni^^^ and an evenly split court in ~enns~lvania~~al1 Amencan jurisdictions that have considered the issue, still foiiow Gleimtan in denying the child's right of action for general damages for 'wronghil life'? This is notwithstanding that

257 E-g- Creco v. United States 893 P3d 345 (Nev. 1995): Keel v- Banach, 624 So.2d 1022 (Al& 1993); Arche v. Unired States of Amenca 247 Kan- 276,798 P. 2d 477 (Kan, 1990); Phifiips v. United States, 508 FSupp, 544 (D.S.C. 198 1)(PhilIips I); Blake v. Cruz supra no te 10 at 320-3 1 (alIowing recovery for emotional suffering. dthough it would offset the damages for emotional injury against the emotional benefits attributable to the binh of the child); Robak v. United States. ibi& Harbeson v. Parke-Davis Inc.. supra note 2; Turpin v. Sonini, supra note 9; Naccash v. Burger, supra note 9: Dumer v. St- Michael's HospitaI, 69 Wis.2d 766,233 N.W.2d 372 ( 1975) [cited to N-W3dj; Speck v. Finegold, supra note 17; Eisbrenner v. Stanley (1 98 1) 1O6 Mich-App. 357,308 N.W.2d 209 (requiring offset of parental benefits); Shroeder v- Perkel, supra note 18 at 842 ('There is no joy in watching a child suffer and die from cystic fibrosis").

158 Berman v. Allan. supra note 1 1 (emotionai distress ailowed); Schroeder v. Perkel. supra note 18 (pecuniary tosses allowed). 259 Azzolino v. Dingefelder 337 S-E.2d 528 (N-C- 1985); Atlanta Obstretrics & Gynecology Group v- Abeison, 260 Ga. 7 1 1 ( 1990), rev'g 195 Ga- App. 274 (1990); Etkind v. Suarez, supra note I 1 (Down's Syndrome)(It is for Parliament io allow such actions as the Court is bound by previous decision), In Wilson v. Kuenzi, 75 1 S.W.2d 741 (Mo-banc 1988)(where the Missouri Supreme Court said chat the action did not lie before the introduction of IegisIation prohibiting it in 1986). '60 Becker v. Sclwat-c, supra note 1 1. 261 Turpin v. Sonini, supra note 9 effectively overruling Curlender, See now also Garni v- Mullikin Medical Crr., nipra note 30(spina bifida)(applying Turpin). 262 Speck v. Finegold, supra note 17 (Denying the child's 'wrongful life' daim by an evenly divided court). But see Ellis v. Sherman, supra note 17(rejectin,a the action by a clear majority). 263 Gildiner v. Thonias Jefferson Univ. Hospital, 45 1 FSupp. 692 (E-O.Pa, 1978)(Tay-Sachs); Schloss v. Miriam Hospita, srcpra note 9; Smirh v. United States, 392 F-Supp. 654 (N.D, Ohio 1975)(Applying Texas law): Eilior v- Brown, 36 1 So.2d 546 (Ala., 1978); DiNatale v. Lieberman, 409 So.2d 5 12 (Fia- Dist-App. 1982); Moores v. Lucas, supra note 17; Blake v. Cruz, supra note 10; Goldberg v, Ruskin, supra note 9; Strohmeaier v. Ob. And Gyn Assoc.. 122 Mich-App. 1 16,332 N.W.2d 432 (1982), appeal denied 4 17 Mich- 1072.336 N-W.2d 751 ( 1 983); Azzolino v. Dingfelder, supra note 259; Alquijay, supra note 14; Becker v. Schwzrtz. supra note 1 1: Rubin by Rubin v. Hamot Medical Center, 329 Pa-Super. 439,478 A.2d 869 (1 984); James G. v. Caserta, supra note 1 1 ; Wilson v. Kiierrzi. supra note 259; Garrison v. MedicaC Center of Delaware Del.Supr.supra note 14: Siemieniec v. Lurheran Gen. Hosp; supra note 19; Phillips 1, supra note 737: Phillips iV), supra note 28(consuuing South Carolina law); Stewart v. Lottg Island College Hospital (1968) 58 Misc.2d 432,296 N-YS.2d 4 1 : Turpin v. Sonini, supra note 9; Eisbrenner v. Stanley, supra note 257; Speck v. Finegold, supra note 17; Bennan v. Allan, supra note 1 1; Dumer v. Sr. Michael's Hospital. supra note 257; Jacobs v. Theimer, supra note 10; Hester v. Dwivedi (1999) WL 94589 (Ohio App, 1 Dist.) online: WL (spina bifida); McLeod v. Dnlkoti Shield Claimanrs Trust 967 F.Supp. 856; Saunders v. Unired States of America 64 F. 3d 482; Ellis v. the New Jersey Supreme Court in Procanik v. Cil20 subsequently partly over-ded its decision in Gleitman allowing recovery of special damages for a 'wron,$Ùl Life' action.2a California and Washington have dso pennitted the child in a 'wrongful Life' action to recover special darnages only for the costs of medical tare?'

Since the reasons relied on by the Gleitman Court to deny recovery to parents in 'wrongful birth' actions were no longer applicable, they could not convincingly be relied upon by future Courts co deny 'wrongfid life' actions either. However, as wiii be seen in the foliowing sections, policy reasons relating to the sanctity of Iife and perceived difficulties in the assessrnent of darnages somewhat inconsistently continue to be relied upon by many post- Gleitman Courts as legal justification for refusing to recognise 'wron,@ùl life' actions, It is to these cases that 1 turn now.

2.3 The Rise and Fa11 of 'Wrongful life' Actions in America: Turpin, Harbeson, Procanik v. CilCo & Other Cases

In Dttrner v. Sr. Michael's Hospital, the Wisconsin Supreme Court held that the mother of a child born with congenital rubelia syndrome had an action against the defendant physician who rnisdiagnosed her infection with rubella while prepant? However, the Court, affinning the decision of the New Jersey Supreme Court in Gleimzan, dismissed the claim of the child on the bais that "the damages clairned cannot be measured by any standards

Sherman, supra note 17; Smith v. Cote. supra note 10; Bruggernan v. Schimke. supra note 9; ProBtr v. Barrolo 412 N.W. 2d 232 (MichApp. 1987); Walker v. Man, supra note 14; Cowe v. Forum Croup Inc, supra note 234; Lininger v. Eisenbaum, supra note 9; Creco v. United States, supra note 257. Pro-life inspired legislation also disallows wrongful birth and/ or wrongful life sui& in some American States: E.g. Both actions are prohibited in Minnesou Missouri and Utah: Minn. Sta~Ann. 5 145.424(1)(1998); Missouri Stat. Ann. 5 188.130. RSMo 1986; Utah Stat. Ann. 5 76.7-305.5. Wrongful life suits only are now also prohibited in California, Sauth Dakota & and Pennsylvania: Cal. Civil Code para 43.6; S.D. Cod-1-Ann para 21-55 (198 1); 42 Pa- Cons. Stat, @ 8305(b) (Supp. 1998). ZM 478 A2d 755,97 NJ. 339 (NJ. 1984) [cited to A.2dJ- But cf: Hummel v. Reiss 129 NJ. 118,608 A.2d 134 1 (N.J. 1992). 265 Turpin v. Sortini, supra note 9; Garni v. Mullikin Medical Cm,supra note 30 (applying Turpin): Harbeson v. Park-Davis Inc., supra note 2. Also see Rosen v. Kan ( 1994) WL 879466 (Mass. Super. C~)online:WL (cardiac defects & no oesophagus)(Allowed recovery for darnages for extraordinary expenses of raising child as exception to ruIe against 'wrongful Iife' actions). 266 Supra. note 257. recognised by our law. 9, .267 Justice Hansen, dissenthg in part, pointed out the apparent inconsistency of the reasoning of the majority, in disdowing the child's clairn but not also the parents claim?" He would have followed the reasoning in Gleitman and disailowed both daims because of the "immeasurability of damages both in the action brought on behaif of the child and the action brouglit by itsparents" and for reasons of public policy.269

In Ellion v. Brown, the Supreme Court of Alabama sought to rely on the reasoning in Gleibnan to dismiss the application of a child bom disabled when the defendant negligently failed to properly perfom a vasectorny on her fatherTO However, the Court did not have to be concerned about any apparent inconsistency in its approach because the parents' clah was not in issue. The Court adopted the reasoning of the New Jersey Supreme Court in Gleitman in respect of the child's claim and held chat there was no legal right not to be born, as such a right would be contrary to public policy.271 Further, the tight of women to have in certain cases did not alter this policy.m The Court queried, "Upon what legal foundation is the court to determine that it is better not to have ken born than to be bom with defonnitiesy273 . If it permitted the action, "then what criteria would be used to determine the degree of defonnity necessary to state a clah for relief[?] 1, .271 The Court concluded, "[wle decline to pronounce judgement in the imponderable area of nonexisten~e.".~'~

However, Eiiiott v. Brown is not in truth a 'wrongful life' case. Ln Gleitnzan, and other 'wrongful life' cases, the child's congenital disability was the proximate result of the defendant's negligence in failing to advise her parents of the risk that her mother's exposure

267 Ibid. at 376. Ibid- at 378-79.

'69 Ibid. a1 378 [emphasis added]. 270 Supra note 263. "' Ibid. at 548. Ibid. 'n Ibid.

274 Ibid. to rubella during prepancy would harm the foetus. In Elliott v. Brown, on the other hand, the child' s disability was completely unrelated to the defendant's negligence. There was never any allegation that the defendant knew or ougbt to have known that if the vasectomy failed, a congenitally dîsabled child would be born. Mr. EUiot and/ or his wife might have a claim for 'wronghii conception' for the birth of the plaintiff as they had the vasectomy to prevent danger to his wife's health from becoming pregnant?6 However, there seems no legal basis for the child to hold the defendant responsible for her disabilitym

Twelve years after its decision in Gleimian, the New Jersey Supreme Court in Bennan v. AlZan partially retreated from its position by allowing the parents of a child bom with Down's Syndrome, but not the child, to succeed in an action for 'wrongful birth'? The defendant physician had failed to inform the mother who was in her late thirties, of the increased risk of having a child with the condition and of the availability of amniocentesis. The Court said chat "to deny [the parents] redress for their injuries merely because damages cannot be measured with precise exactitude would constitute a perversion of the fundamental pnnciples of justice. TT .279 In relation to the child's claim, the majority preferred to rely on the view that Sharon had not suffered any injury cognisable at law in king boni? However, they justified this conclusion solely on policy grounds relating to the sanctity of life. They said,

One of the rnost deeply held beliefs in Our society is that life - whether experïenced with or without a major physicai handicap - is more precious than non-life ... Sharon, by virtue of her birth, will be able to love and be loved and to experience happiness and pleasure - emotions which are far more valuable than the suffering she may endure. To rule otherwise would require

"S Ibid. Ibid, at 546. -17 However, the parents might possibly be able to recover in a 'wrongful conception' case for the extraordinary costs of nising the child as a result of her congenital disabilities under the 'egg shell skull' rule. See further iifra note 538 & accompanying text. 2% Supra. at note 1 1.

279 Ibid. at 15. ibid. at 12. us to disavow the basic assumption upon which our society is based- This we cannot do,"'

In Speck v. Finegold, while allowing the parents to recover the expenses of raising a child born suffenng fiom neurofibrornatosis and for the mental distress associated with the child's birth, the Supreme Court of Pennsylvania stnick out the child's claim, albeit by an evedy divided The parents deged that the chiid was bom as a result of the defendant's negligence in perforxning a vasectomy. However, unlike in EiZiott v. Brown, the parents in Speck v. Finegold, specificdly sought the vasectomy to avoid the bîrth of a child with neurofibromatis, an inherited disease, after having had two previous children who suffered frorn the disea~e?~

The Court said that the parents claim codd be dealt with by "rnerely requiring the extension of existing principles of ton law to new facts .284 Referring, among other things, to the decision of the Supreme Court in Rue v. Wude, the Court rejected the argument that the parents action was contrary to public policy.f85 However, in relation to the child's daim, the position that ultimately prevailed was that the question whether the negligent failure to prevent the birth of an unwanted child should be cornpensable was properly one for determination by the ~egislature.~

Several years later, in Ellis v. Sherman, the sarne Court refused a claim by a different child suffenng from neurofibromatosis, this time by a majority of 5 judges to 2.= The child alleged negligence in the failure of the defendant doctor's to diagnose a milder form of the

-8t Speck v. Finegold, supra note 17. The Court king evenly divided, the decision of the trial judge to strike out the child's claim was affirmed. za 'Neurofibromatosis* (Von Recklinghausen's Disease) is a disease due to an autosomal dominant gene and characterïsed by deveioprnental changes in the nervous system, muscles, bones and skin, can be both congenitai and hereditary and there is no known treatment or cure: Ibid at 112 n.2. Ibid, at 1 13.

'85 Ibid. at 1 14.

'86 Ibid. at 12 1-22, Supra. note 17. disease in bis father depriving his parents of their right to avoid the child's birth? Justice Flaherty, delivenng the majority judgement, rejected the child's claim on the basis that the child's damages were "too speculativeT' to determine and that the chiid suffered no legal injury since the hereditary disease was not caused by the defendant's negligence, but by a natural disease process.un

Curiously, however, Justice Flaherty, made no reference to his decision in Speck v. Finegold, in which he, dong with others in the minority, would have aliowed the cbild's claim. In Speck v, Finegold, Justice Flaherty rejected "the view that we cannot calculate the value of existence compared to nonexistence" as a "hyper-scholastic rationale used to deny a cause of action" for wronghil life? He said that "when existence is foreseeably and inexvicably coupled with a disease, such an existence, depending upon the nature of the disease, may be intolerably burdensome", and that "[ilt would be bizarre to argue that [the plaintiffl in the present case [is] not injured. t*. 291 It is astounding that Justice Flaherty offers no explanation for this complete turn-around in judicid position.

Justice Larsen, dissenting, who joined in the opinions of Justices Flaherty and KauEman in Speck v. Finegold, on the other hand, rejected the majority's reasons for dismissing the child's claim in Ellis. He said that difficulties in the assessment of damages were not a valid justification for denying the child's claim and that "where a child experiences suffenng and financial expense as a result of another's negligence, that suffecïng and expense should be cornpensated. 77 .292

as Ibid. at 1328. Ibid. at 1319-30. He concluded. -Because we have no way of knowing what opportunities will be available to this child or how the child wiI1 respond to life in general. we cannot say how the child's pain and suffenng wiIl compare to the benefits of its life, and thus, we cannot determine that its life consututes an injury.": Ibid. at 1329. 290 Speck v. Finegoid, supra note 17 at 115. 29t Ibid at 115. 116.

29' Eliis v. Sherman. srrpra note 17 at 1330. Becker v. ~chwanz:~~was a consolidated apped from two cornpanion cases. The fmt concemed a child born with Down's Syndrome allegedly as a result of the faiiure of the physician to advise the child's 37 year-old mother of the increased risk of women of her age having a child with the disorder and of the availability of amni~centesis.~~The second concemed a child born with polycystic kidney disea~e.~~The defendant assured Mr. and Mrs. Park that the disease that their fmt child died of shortly after birth was not hereditary and that the Iikelihood of having a second child afflicted with the disease was "practicdiy nil". Relying on this advice, Mr. and Mrs. Park conceived a second chiid who was born suffenng from the disease and who died at the age of 2 Y2 years.

The New York Court of Appeals held that the cornpiaints filed by the parents in the two cases for 'wrongf'ul birth' stated a valid cause of action for pecunïary damages, but that polic y reasons prevented the parents from recovering darnages for emotional However, the Court dismissed the cornplaints fded on behalf of the children as failing to state a valid cause of action for two main reasons. Firstly, the infants did not suffer any legdly cognisable injury, there being no precedent at the appellate ievel for recognition of the Fundamental right of a child to be born as a whole hinctional human king? Judge Jasen, for the majonty, said,

Whether it is better never to have been born at dl than to have ken born with even gross deficiencies is a mystery more properly to be left to the

293 Supra, note 1 1. 294 'Down Syndrome' is caused by a chromosomal anomaly consisting of an additional chromosome called 'trisomy 2 1' and results in mental retardation and various degees of associated physical abnormdities: Ibid. at 808 n. 1. 295 Park v. Chessin. supra note 9. 'Polycystic Disease' of the kidney was descnbed by the Court in Becker as a condition characterised by numerous cysts scattered diffusely throughout the kidneys, sometimes resulting in organs that resemble grapelike clusters of cysts: Supra note I 1 at 809 n.3. 296 Becker v. Sclzwarz, ibid- at 8 13. The Court relied on the earlier decision of Howard v. Lecher, 42 N.Y.2d 109. 1 12,397 N.Y.S.2d 363,365,366 N.E.2d 64-65, in which the parents of a child born with Tay-Sachs disease failed in an action against the defendant physician who had failed to inform them of the risk and the availability of tests to determine whether their child would be afflicted with the disease. 297 Ibid. at 8 12. Breitel and Jones JJ concurred with the judgement of Jasen J. The Court was refemng to the statement of the New York Intermediate Appellate Coun which held that the breach of the right of potentid parents to choose not to have children where it could be determined with teasonable medical certrllnty chat the chiId would be born disabled could be tortious to "thefundamental right of a child to be born as a whole, functional human being.": Park v. Chessin, supra noie 9 at 114. philosophers and the theologians. Smly the law can assert no cornpetence to resolve the issue, particularly in view of the very nearly uniform high value which the law and mankind has placed on human life, rather than its absenceF9'

Secondly, the Court said that damages recoverable on behalf of the infants were not ascertainable. The rnajority said,

Simply put, ô cause of action brought on behaif of an infant seeking recovery for wrongfùl Ne demands a calculation of damages dependent upon a cornparison between the Hobson's choice of life in an irnpaired state and nonexistence. This cornparison the Iaw is not equipped to rnake ... Recognition of so novel a cause of action requiring, as it must, creation of a hypothetical formula for the measurement of an infant's damages is best reserved for legislative, rather than judiciai attention?

In a terse judgement written 6 yem later in Alquijay v. Sr. Luke's-Roosevelt Hospiral Cenrer, the New York Coun of Appeal refused to reconsider its position and to allow a child bom with Down's Syndrome a right to recover the extraordinary expenses incurred fiom its c~ndition.~An amniocentesis test perfomed on the child's mother during pregnancy wrongIy reported that the child would be 'normal '301. The Court's decision to deny a cause of action to the child was despite the fact that the child's parents were statute barred from recovering the pecuniary expenses for the care and treatment of the child to the age of rnaj~rit~.~'While the Court said there \vas no "'anomdy or inconsistency" in denying the child's action in circurnstances where the parents would have ken allowed to recover their

298 Ibid. The Court funher considered that the implications ofallowing such a daim were "staggeringw- They qucried, "[w]ould claims be honored, assuming the breach of an identifiable duty, for less than a perfect birth? And by what standard or by whom would perfection be defined?": Ibid -39 Ibid. Judge Fuchsberg (Cook J. agreeing) would have dismissed the infants' clairns, but not because of the "professed inability to calculate the extent and amount of the damages", but because of the inability to prove damage: Ibid. at 8 14. Judge Wachtler (Gabrielli J. agreeing) would have dismissed both the parents and the children's claims for policy reasons relating to the fear that aiIowing the action would encourage doctors to advise of abortions. Ibid. at 8 18- 19. S00 Supra note 14. [hereinafter Alquijay]. 30 1 See aiso Garrison v. Medical Cenrer of Delaware, supra note 14 where the Supreme Coun of Delaware denied a child born with Down's Syndrome an action against a medical laboratory for the negligent delay in the rcporting of amniotic tests depriving the parents of the opportunity to legally terminaie the pregnancy. 302 Alquijay. ibid. pecuniary expenses had they ken within tirne,= it did not elaborate or explain its conclusions.

However, in Crtdender, an action was brought on behalf of a child suffenng fkom Tay Sachs disease alleging medical negligence against the defendant laboratory in providing her parents with 'inaccurate' information concerning their status as carriers of the disease and for faihg to avaiI them of amniocentesis? Shauna sought damages for the costs of her special care and for emotional distress, pain and suffering.= The evidence was that a simple blood test to reved carriers of the disease had been available since 1969.306 Mr- and Mrs- Curlender claimed that if they had been provided with accurate test results, they would not have conceived any children, or if already prepant at the tirne, Mrs. Curlender would have terrninated the pregnancy.

The Catifornian Court of Appeal held that Shauna stated a valid cause of action, which if proved at trial, would entitle her to recover damages for the pain and suffering to be endured dunng her limited life span and any specid pecuniary loss resulting from her impaired condition?' The Court distinguished cases where the child's cornplaint was her social status from cases where she suffered from a debilitating physical and mental disability, in which the requisite element of injury was present.m The Court noted the "ciramatic increase" over the last few decades of medical knowledge and ski11 needed to avoid genetic impairment and the

30' Ibid. at 245-46. Ckrlerider, supra note 9. 'Tay Sachs' Disease is a fatal degenerative disease of the nervous system chat prirnarily affects the progeny of Eastern European Jews. Shauna suffered from, among other things, mental retardation. convulsions, sluggîshness, apathy, failure to fix objects with her eyes, inability to take an interest in her surroundings, loss of motor reactions, inability to sit up or hold her head up, muscle auophy, blindness. inability to feed orally and severe physical deformity. Her Iife expectancy was estimated to be 4 years: lbid- aat 480-8 1. MS Ibid. at 48 I . Ibid wn Ibid. at 489-90.

'06 Ibid. ai 486: 'Surely there is a world of difference between an unwanted healthy child who is illegitimate -.., the unwanted tenth child of a marriage ... and the severely deformed infant plaintiff, Shauna, in the case at bench.". role of ton law as a means of regulating the practice of medicine? The Court observed that despite the bbcoolreception" accorded 'wrongful Life' cases by American Courts, both parents and children have 'continued to seek redress for wrongs committedTT .310 This, the Court considered, was presumably because of the serious nature of the wrong, the increasing sophistication as to causation so as to ailow attribution for an injury to a lack of care rather than to "the fuie hand of providence" and the understanding that the law reflects social change,311

The Curlender Court rejected as untenable the claims that the pIaintifY was entitled to darnages as if she had been bom without defects with a nomai iife expectancy or that a 'wrongful lifeTaction involves any attempted evaluation of a claimed right not to be The Court preferred to restrict ShaunaTsdamages to recovery for the pain and suffering to be endured during the limited life span available to such a child and any special pecuniary loss resulting from the impaired ~ondition?'~

However, the Supreme Court of California partly over-ruled Cririender two years later in Ttrrpin v. ~ortini.~'~In conceiving their second child, the parents of the infant plaintiff relied on the alleged negligence of a physician who advised them that their fmt child's hearing was within normal lirnits when in face she was 'stone des from an hereditary ailment. The Court held that the child could recover special darnages for the extraordinary expenses necessary to treat the condition, but oot general damages for pain and suffering? The Court considered that general damages should not be denied on the rationale that the value of an

Ibid. at 487. 310 Ibid.

3' ' Ibid. Ibid. at 489.

'13 Ibid. 3 14 Tirrpirr v. Sortini, supra note 9 [hereinafter Turpin). Sec also Garni v, Mullikin Medical Crr., supra note 30 (applying Turpin to the case of a child born with spina bifida for alleged negligence in failing to take second blood sarnple for AFB tcsting for neural tube defects).

3'5 Ibid. at 963. impaired life, as a matter of law, always exceeds the value of non-life? ~owever,it was impossible to determine in any ntional or reasoned way whether the child in fact suffered injury at being bom impaired rather than not being bom? Even if it were possible to overcome this hurdle, the Court said it would have been inipossible to assess generai damages in a fair, non-speculative mamer?"

The Court said that there was a profound qualitative difference between the assessment of damages in an ordinary prenatal injury case and in a 'wrongful iife' case. The assessment of damages in a 'wronDoful life' case required the threshold question of determining whether the plaintiff had suffered injury in king boni with an ailment as opposed to not king born.'19 As the value of nonexistence is by its very nature, not within the experience or imagination of people, it would be impossible to detennine that an injury had o~curred?~~Furthemore, a "rational, nonspeculative detennination of a specific monetary award in accordance with normal tort principles appears to be outside the realm of human cornpetence.9, .321

Two sisters diagnosed with 'fetal hydantoin syndrome' were also allowed to bring an action to recover special damages, but not generai damages, in Harbeson v. Parke-Davis Inc.. 322 The girls sued the United States Government and others for the failure of army doctors to inforrn their parents of the material risks of injury to them while in utero from their mother taking the dmg, Dilantin, to control epilepsy during pregnancy?u None of the doctors conducted literature searches or consulted other sources for information about the known

316 Ibid.

l7 Ibid. 318 Ibid. Ibid.

3'0 Ibid. at 963-64. 321 Ibid. at 964. Justice Mosk dissented in Turpin, concluding that a cause of action should be allowed in full for 'wrongful life'. '"Supra note 2. See generally, E-Deutsch. Gottingen, FRG. Case Cornmencary 4 (1985) Med Law 189. 323 Ibid. at 486. The girls suffered from growth deficiencies, developmental retardation, wide-set eyes, latenl ptosis (drooping eyelids), hypopIasisa of the fingers, smaIl nails, low-set hairline, broad nasal ridge, and orher physical and developmental abnormalilles, correlation between Dilantin and birth defects nor did they discuss these risks with the plaintiff s parents.

The Washington Supreme Court said that it would be iilogical and anomalous to permit only the parents and not the child to recover for the cost of the child's medical care and noted that the "child's need for medical care and other special costs attributable to his defect" would "not rniraculously disappear when the child attains majority."?= The Court preferred to place this burden "on the party whose negligence was in fact a proximate cause of the child's contiming need for such special meciicai care and training."?25 Although the task of measuring the value of an impaired Me as compared to non-existence was '%eyond monals, whether judges or jurors", it did not preclude the action altogether and extraordinary expenses for medical care and special training were cal~ulable.~~

Partly ovemling its previous decisions in Gleimton and Berman v. Allan, the New Jersey Supreme Court in Procanik v. Cil10 also allowed a child bom with 'multiple birth defects' from exposure to mbeila while in utero to recover the extraordinary medical expenses attributable to his affliction.f2' The child alleged the defendant doctors negligently failed to diagnose that his mother had German measles in the fmt trimester of her pregnancy?a Of significance to the decision may have been the fact that the parents were statute barred from bringing their own action for 'wronghil birth'?29

However, in restricting the infant's claim to one for special damages, the Court said that it was constrained by the 'insurmountable problerns" that recognition of the child's claim for general damages in a 'wrongfui life' action would entail. In panicular, the Court referred to the philosophical problem of finding that such a defective life is worth less than no life at dl.

324 Ibid.

3'5 Ibid. at 495.

3'6 Ibid. at 496. 38 Supra note 10. 328 Ibid. However, the Court said it need not become preoccupied with these metaphysical considerations as its decision "to ailow the recovery of extraordinary medical expenses is not prernised on the concept that non-life is preferable to an impaired Iife, but .. . on the needs of the

However, virtudly ail 'wron,oful Me' cases in America since Procanik, have dismissed the daim of a child for both generai and special damagesT1 In Wilson v. Kuenzi, the Missouri Supreme Court had to consider the validity of the 'wrongful Life' and 'wrongful birth' causes of action in that State prior to the introduction of legislation prohibiting such claims?' Without referring to a singfe case or proffering any reasons, the Court dismissed the child's action on the purported weight of judicial authority as to the difficulties in assessrnent of damages, 333

Claims by children born with congenital nibella syndrome aüegedly as a result of the negligence of the defendant physician in faihg to test or correctly diagnose the mother7s infection with rubella during pregnancy were dismissed in Idaho, New Hampshire and ri zona.^^ In Blake v. Cruz, the Supreme Court of Idaho held that Dessie suffered no Iegally cognisable injury by king boni because, quoting from Bennan v. Allan, "[llife - whether experienced with or without a major physical handicap - is more precious than non- life. 99. 335 Again, quoting from Bennan v. Allan, the Court said that even if it were to hold that

329 Ibid. at 759. Note that the Supreme Court of New Jersey has since resuicted the holding in Procanik to births arising after the decision in Roe v. Wade: Hummel v. Reiss, supra note 264.

But see cases allowing recovery for special damages on1y at supra notes 264 & 265. 332 Supra note 263.

333 Ibid. ar 743. The Court atso disrnissed the parents action for 'wrongful birth', but on the ground that 'lhe physician cannot be said to have caused the defect": Ibid. at 744-46. Higgins J- and Biltings C.J. dissented as to both the child's and the parents clairn, Billings CJ. said, 'The conclusions [of the rnajority] concerning causation and assessmcnt of damages ignore the fact that both common Iaw and statutory law have dernonstnted. time and time again, that these 'reasons' are not sound: Ibid- at 748. He further stated, 'The emotional and controversial issue of abortion should not conuol or influence the decision in this case. Neither should the enactrnent of socalled 'tort rcform' iegislation-the constitutionality of which must await another day.": Ibid. at 749. 334 Blake v. Cruz, supra, note IO; Smith v. Cote, supra note 10; Walker V. Mart, supra. note 14. Blake v. Cruz, ibid. at 322. being born was a legally cognisable injury, the 'impossibility' of measunng damages would in any event preclude recognition of the child's claim?

In Smith v. Cote, the Supreme Court of New Hampshire said the chiid had no legally protected interest in avoiding her own birth, and therefore suffered no legal injury? The Court also referred to "compelling policy reasons [that] militate against recognition of wrongful life claims. 97 .338 Firstly, recognition of the claim would sanction the view tiiat the child's life was not worth living, which was contrary to the principles of the right to life and equality before the ~aw?~Secondly, to characterise the life of a disabled person as an injury would denigrate and devalue disabled people generally.Y. Thirdly, the application of the traditional tort concept of injury was not possible in wrongful life cases where the finding of injury hinges on subjective and intensely personal notions as to the intangible value of life?' The Court concluded, "[wle will not recognize a nght not to be bom, and we will not pennit a person to recover darnages from one who has done him no hann. 9, .342

In Walker v. Murt, the Supreme Court of Arizona did not rely on the impossibility of assessing darnages, saying that difficulty of quantiwing general damages should not have prevented the courts from awarding such damages if in fact injury had oc~urred?~Rather, the problem was the lack of a legally cognisable injury? The Court distinguished wronghil

3x Ibid. Justice Birtline dissenting would have allowed the child's cause of action: Ibid. at 323-29. The parents. however. could recover the medical and hospital care for the chiId beyond the age of majority and damages for emotional distress. 337 Srniriz v. Cote, supra note 10 at 352. Ibid.

"9 Ibid. fbid. at 353. See also Comment, "Wrongful Life: A Misconceived Ton" (1980) 15 U.C.D.L. Rev. 447 at 459-60. Ibid.

Wniker v. Man,supra, note 14 at 739-40. life cases from wrongful birth cases on the basis that a wrong is done to the parents by the negligence of the defendant, but not to the ~hild.~~

In Guldberg v. Ruskin, the Supreme Court of Illinois rejected a child's claim for general damages on the basis that the child suffered no legal injury by king born with Tay Sachs disease. and that even if he did, the injury could not be rneasuredYC The defendant's were allegedly negligent in failing to inform JeEfrey Goldberg's parents of the risk that their child would be born with the disease or of the availability of tests that would have shown that he had the disease. If they had been informed of the risk, the parents allege they would have taken the tests and when told of the positive results, they would have aborted the pregnancy. The Court said,

The argument that the child was in some meaningful sense harmed by king born and would have been better off not king born suggests that there is a perspective, apart from Our life and world, fiom which one can stand and say that he finds nonexistence preferable to existence. Detennining whether an injury has occurred in these circumstances is a matter outside the cornpetence of the legal system, for ... whether it is better not to be born at ail than to be born with even the most serious illness is a question more properly lefl to others?'

in relation to the assessrnent of damages, the Court said that the task would not merely be difficult, it would be "rneaningless and impossible." The Court concluded that "[tlhe di fficul ties in evaluating the hann and measuring the damage are insurmountable barriers to recovery here,rr .348

Supra note 9 ai 409. See also Schloss v. Miriarn Hospital, supra note 9 in which the Rhode Island Superior Court rejected the daim of a child born with Tay Sachs disease,

347 Ibid. ar 409. rbid. ar 4 10. In Siemieniec v. Luiheran Gen. Hosp.. supra, note 19 at 701. the sarne Coun denied a child born with haemophilia an action for the exuaordinary medical expenses associated with his condition beyond the age of majority on the basis of the absence of any legal injury and policy reasons favouring childbirth over abortion. Similarly, in Lininger v. Eisenhum, the Supreme Court of Colorado refwed a childTscause of action for the failure of the defendant physician to diagnose his older brother's hereditary blindness. The Court referred to the by now farniliar grounds that the child suffered no legai injury in being bom and the mculty in assessing da~na~es.~~

2.4 'Wrongful life' Actions in the United Kingdom (& Suhg One's Parents): McKay

If American Courts could be saîd to have dlowed themselves to be distracted by the quandaries of non-existence and the emotive and value laden language of abortion politics in considering the 'wrongfbl IifeT cause of action, the English Court of Appeal in McKay was completely overwhelmed by such considerations. Following the recommendation of the English Law ~ommission~~~the Congenital Disabilities Act was purportedly drafted so as to exclude 'wrongfid life' actions. Section 1(2)@) provides that the Act is restricted to occurrences, which affect the mother during her pregnancy or in the course of the child's birth "so that the chilci is born with disabilities, which would not othenvise have been present 7, .351 The English Court of Appeal in McKay interpreted this provision as prohibiting cornrnon law actions for 'wronghil life' where the child was bom after 22 July 1976y2

However, in McKq, the English Court of Appeal had occasion to consider the common law position in England with respect to the birth of a child with congenitd rubella syndrome before the introduction of the AC^?^ The child claimed that by reason of the defendant's

349 Supra note 9 at 1210-121 1 (overruling Continental Casualry Co.. supra notc 188). 3M Repon on Injuries ro Unborn Children, supra note 36 at para 89: "We do not think that, in the strict sense of the term, an action for 'wrongful life' should lie-", "' Supra, notc 37 [emphasis added]. 352 This was the date the Act came into operation. McKay. supra note 10 at 1 187 per Ackner L-J; 1 192 per Griffiths L-J; 1 178 per Stephenson LJ. However, another interpretation is possibly availabte on the wording of Section 1(2)(a) of the Act which is not so resuicted to an otherwise healthy child in respect of pre-conception occurrences: See further. 1. Kennedy & A-Gmbb, supra note 41 at 976-77. See also Margaret Brazier and John Murphy, eds., Srreer on Tors 10' ed. (London: Butterworths, 1999) at 202.

353 McKay. &id.. The Court noted chat this was the firsr occasion on which the Courts of England or the CommonweaIth considcred the cause of action: Ibid. at 1 178. negligence in incorrectly advising her mother that the foetus she was carrying was not affected by her contact with rubella, she suffered "entry into life in which her injuries are highly debilitating, and distress, ioss and damage9, .354 If her mother had been correctly informed that the foetus she was carrying had been affected, she would have legally aborted it-355

The Court of Appeal stnick out the child's claim as disclosing no reasonable cause of action?" The Court characterised the child's cornplaint as a ciaim for b'wrongful entry into life" or "wrongful life"?" The Court relied on three related arguments to support their conclusion. Firstly, a doctor did not owe a "duo to the foetus to urge its destru~tion"?~ Secondiy, the birth of a chiid, however disabled, was not an injury known to the ~aw?'~ Thirdiy, an assessrnent of the chiid's damages would be "impossible", as it would require, according to traditional tort pnnciples, a cornparison between life in an impaired state and non-existence, of which "the court knows nothing9- .360

In relation to the duty, Stephenson L.J. effectively relied on public policy considerations as to the absolute sanctity of human Life. He said,

To impose such a duty towards the child would, in my opinion, rnake a further inroad on the sanctity of human Life which would be contrary to public policy.

'" The Abonion Act 1967 (U.IC)s. I(1). as amended. contains 4 gmunds for lawful abortion. The first 3 grounds relate to the risk of physical and/ or mental injury to the mother of continuing with the pregnancy. The 4h ground aliows (eugenic) abortion if there is a 'substantial risk' of the child king born 'seriously handicapped'. This last provision, as amended, is no longer subject to any time limits imposed by the Infant Life (Preservation)Act 1929: See further Kennedy & Gnibb, supra note 41 at 874-878. 356 McKay, supra note 10 per Stephenson LJ. & Ackner LJ. Griffiths LJ., while concluding that English law does not recognise a claim for 'wrongful life', would nevertheless not have interfered with the lower Court's discretion to refuse to strike out the claim.

3n fbid. Per Stephenson LJ. at 1 179.

35" fbid. [Ernphasis added] Per Stephenson LJ. at 1 178; 'Thus, the duty of care is saîd to involve a duty to the foetus, albeit indirectly by advice CO the mother, to cause its death.": Fer Ackner LJ, at 1188. But cf: Griffiths CJ. at 1 192.

359 1bid Pcr Stephenson LJ. at 1 18 1 ;Per Ackner LJ. at 1 189; Per Griffiths LJ. at 1 193. lbid. Per Stephenson W. at 1 18 1-1 182: 'If dilficulty in assessing damages is a bad reason for refusing the task, impossibility of assessing them is z good one."; Per Ackner L.J. at 1 189; Per Griffiths LJ. at 1 192-93. It would mean regarding the iîfe of a handicapped child as not oniy less valuable than the life of a normal ctiild, but so much less valuable that it was not worth preserving, and it would even mean that a doctor would be obiîged to pay damages to a child infected with nibeiia before birth who was in fact born with some mercifully trivial abnomality. These are the consequences of the necessary basic assumption that a child has a nght to be born perfect or "normal", whatever that may mean."'

Stephenson L.J. aiso referred to the objection that allowing the 'wrongful life' cause of action would open "the courts to claims by children born handicapped against their mothers for not having an abortion 9- .362 However, the fear of children suing their parents for the circumstances of their biahs ought to be no more an obstacle to recognition of 'wrongfd life' actions than it is an obstacle to recognition of ordinary cases for prenatal injury against third party tortfeasors discussed in the previous chapteram

The California COU^ of Appeal in Curlender rightiy dismissed as "groundless" the fear expressed in the 'wrongfûl life' cases that once the cause of action was recognised, nothing would prevent a child from suing its parents for allowing the plaintiff to be bornaw The Crcrlender Court in fact saw no sound reason for excluding the parents from liability for consciously proceeding with a pregnancy with full knowledge that the child would be born severely disab~ed.~~'Whichever way one falls on the policy issues, however, Stephenson L.J. was surely wrong to rely on the prospect of future claims by children against their parents complaining of the circurnstances of their births as justification to deny redress for a child wron,@ûlly harmed by a third party tortfeasor.

In relation to the qucstions of injury and compensable loss, Stephenson L.J. said,

Even if a court were comptent to decide between the conflicting views of theologians and philosophers and to assume an 'after iife' or non-existence as

36 1 Ibid. at 1 180-8 1. Per Ackner LJ. at I 188.

M' M' Ibid. at 1 18 1. Sce also Ackner LJ. at 1 188, Sce further supra notes 195-207 & accompanying text.

3M Curlerider, supra note 9 at 488.

M5 Ibid. the basis for the comparison ktween impaired life and non-existence], how can a judge put a value on the one or the other, compare either alternative with the injured child's life in this world and determine that the child has lost anything, without means of knowing what, if anything, it has gjained?=

Sirnilarly, Grifiths L.J. said,

[Sluppose by some happy chance the child is born with oniy a slight deformity, can it bring an action upon the basis that it would have been killed in the womb if the mother had been told of the nsk of greater deformity? Such a daim seems utterly offensive; there should be rejoicing that the hospital's mistake bestowed the gifi of life upon the child. If such daims are rejected, upon what basis could a clah be brought for a more serious injury? Only, it would seem, on the bais that the state of the child is such that it were better dead than dive. But knowing nothing of death, who is to answer this question, and what two minds will approach the answer by the same route? 1 regard the uestion as wholly outside the cornpetence of judicial determination.367

As the parents in McKay did not bring a separate action for 'wrongful bisth', the Court of Appeal had no need to consider the validity of that cause of action. However, a nurnber of English decisions have since ailowed the 'wronbofiii birth' cause of action without ever questioning its ~alidit~.~Indeed it is difficult to see how the parents clairn for the wrongful birth of a disabled child could be denied in circumstances where English courts have for some time now reco,onised the parents right of recovery for the 'wrongfbl conception' of a healthy, but unplanned child?'

However, had the Court in McKay, had to decide the validity of the wrongfül birth cause of action in England, it is not evident that they would have allowed it. Many of the reasons the

364 McKay. supra note 10 at 1 18 1. See dso Griffiths LJ. at 1 192-93.

368 E.g. Das v. Ganju [ 19991 (31 March 1999) (England & Wales) E.W.J. No. 1797 FC3 l998/'275/l (CA.); Rance v. Mid-Downs HA [ 199 1 ] 1 Al1 ER 80 1 (Per Broo~eJ.); Salih v. Enfield HA [ 199 1 ] 3 AI1 ER 400 (C.A.). 369 E.g. Walkin v. Sourh Manchester HA [ 19951 NLOR No 67 NLC 29506 1 1 102 (U.K.C.A.) onIine (failed sterilisation); Allen v. Bloomsbus, HA [I 9931 1 AI1 ER 65 1, (1992) 13 BMLR 47 (U.K.C.A.)(failedabortion): Etneh v. Kerzsir~gronand Chelsea and WesrntimrerArea Healrlt Aurhoriry [1985]Q.B. 10 12, [1984]3 Al1 E-R. 1044 (C.A.) (failed sterilisation)[hereinafter Emeh]; Udale v. Bloomsbury Area Heairh Aurhoniy [1983] 2 Al1 ER 522,119831 1 WLR 1098 (QJ3.D-)(negligent sterilisation); Thake v. Maurice [1984] 2 Al1 ER 5 13 McKay Court gave for rejecting the child's claim wouid apply equally to the parents clairn for '[email protected] birth'. This is particularly in light of the emphasis the Court placed on policy reasons relating to the sanctity of human Me and antipathy towards abortion to deny the child's claim.

One cannot help but wonder whether, if the Court of Appeal or the House of Lords had to reconsider the case today, they wodd arrive at the same conclusion, and relying on the same reasoning. This, however, we are unlikely to ever know for so long as the Congenital Disabilities Act prohibits 'wrongfd Me' actions.

2.5 'Wrongfd We' Actions in Canada and Australia

There is only one appellate Court decision in Canada and none in Australia directly on the validity of the 'wrongful Life' cause of action? While courts in both countries have, to varying degrees, recognised both 'wronghil birth' and 'wronghil conception' causes of action,"' it is unlikely they would be willing to depart from the weight of American and English authority refusing to recoapise the 'wrongful We' action.

- (U.K.C.A.): Gold v. Harirrgey Health Aurhnp [1987] 2 Al1 ER 888, El9881 QB 481; Gardiner v. Mounfxeld [ 19901 1 Med LR 205; Robinson v. Salford Healfh Authority [ 19921 3 Med. L.R 270. 370 Bartok v. Shokeir (1998) A.C.W.SJ. 157 (Sask- C.A-), online: QL [1998] SJ. No. 645 [cited to A.C.W.S-1.

37' E-g. Canada: Wrongful Birth Cases: Parmore v. Wearhersron [1999] B-CJ. No. 650 (B.C.S,C. (T.D.)) online: QL (Mother's clairn for costs of raising child with spina bifida dismissed on the basis that she failed to show dcfendant negligcnt); Bosard v. Davey. supra note 214 (Plaintiff first cousins who gave birth to a child with severe autosomal recessive disorders from consanguinity aIIowed to sue physician for failure to warn upon spccific request): Mickle v. Salvation Amy Grace Hospital. supra note 28(parents of chiid born with CWD syndrome was dismissed on the basis that the ultnsound technician and radiologkt exercised reasonable care and mother could not show that a reasonable person in her circumstances would have had an abonion); Arndt v. Smith (1997) 147 D.L.R. (4") 48 (S.C.C.); Krangfe v. Brisco, supra note 28 (Claim allowed against physician for Mure to advise 36 year oId mother of availability of amniocentesis to derect Downs' Syndrome in foetus)); R. H. v. Hunter ( 1996) 32 C.C.L,T. (26) 44-67 A.C.W.S- (3d) 1 109, [1996] OJ. No. 4477 (Parents could recover for sons born with debilitating form of Duchenne muscular dystrophy for negligent failure of physicians LO provide genetic Counseling); Frederte v. Wiebe [1986] 5 W,W.R- 233 (B.C.SC (T.D.)). Wroneful Conception Cases: Kealey v. Berezowski (1996) 30 0.R- (3d) 37; 136 D.L.R. (4"' 708 (Ont- Gen. Div.)[cited to D.L.R]- (failed tubal Iigation); Suite v. Cooke [1995] R.J.Q. 2765 (Que. CA,) (Child rearing costs considered in damages assessment); Cataford v. Moreau (1978) 114 D.L.R. 3d 585 (Qc. Sup. Ct.) (failcd sterilisation resul ting in birth of 1 lh healthy child). C/:Freeman v. Simer ( 1996) 1 10 Man.R. (2d) 23, [ 19961 4 W.W.R. 748 (Man. C.A.) (Denied father's daim for maintenance and other costs of raising child born as a result of a negligently performed abortion). Australia: Wroneful Conce~tionCases: CES v. Superclinics (Ausr.) Pry. Lrd, Neither 'wron,oful birth' nor 'wrongful life' actions would have been possible in Canada pnor to 1969, when the Criminai Code prohibited abortion. In 1969, the Criminal Code was arnended to permit abortion in an accredited hospital after written certifkation from a Therapeutic Abortion Comrnittee. As a result of the Canadian Supreme Court decision in R v. Morgentaler, the prohibition on abortion has ken li~ed?~*The position in Austraiia is generally more complicated, with each State and Territory containing its own speçific Iegislation, but most legalising abortion to varying degrees.

Cataford v. Moreau was the fmt Canadian case to consider the 'wrongfid life' cause of action. However, the case concerned the birth of a healthy child and was reaüy a wrongfbl conception caseY3 A surgeon negligently performed a sterilisation procedure on a woman who was struggling fmanciaily with her husband to raise their 10 children. Four months later, the woman becarne pregnant with an eleventh healthy, but unwanted, child. The woman and her husband succeeded in an action against the surgeon for darnages immediately attributable to the surgeon's negligence, namely, the costs of the pregnancy, labour and birth, and the second sterilisation procedure required to correct the fmt.374 However, the parents also brought an action on behalf of their child.

Deschenes C.J., for the Quebec Superior Court, promptly dismissed the child's action as being "without any f~undation".~'~Refemng to the Amencan cases of Zepeda and Slterlock v. Stillwater Clinic, the Court concluded that "[tlhe birth of a healthy child does not

( 1995) 38 NSWLR 47 (NSW CA). Wronnful Birth Cases: Veivers v. Conrroliy (1994) Aust Torts Reports '38 1- 309 (QId, Sup. Ct)(de Jersey J. allowed recovery of damages by woman whose child was hmseverely disabled as a result of contracting mbeiia during pregnancy). 372 R v. Morgentaler [1988] 1 S.C.R. 30-44 D.L.R. (4h) 385 (S.C.C-). Note also that Section 7 of the Canadian Charter of Righrs and Freedoms ("everyone has the right to life, liberty and secunty of the person") would very unlikely apply to daims for the 'right to life' of the foerus.

373 Supra note 37 1.

374 Ibid. The Court did not decide the question whether the parents would be entitled to recover darnages for the costs of raising the child until majority as it considered chat any such costs would be off-set by the benefits which the plaintiffs would derive from the birth of the child, See further infra note 535. "' Ibid at 595. constitue, for this child, damage, and SU less damage compensable in money. ~r .376 The Court added, bbbywhat perversion of the spirit may one arrive at qualifying as damage the inestimable gift of life?"?

In Cherry v. Borman, a child who was bom with severe and permanent disabilities as a resuIt of the defendant's negligence in perfomillig a fded abortion was held liable at fmt instance to both the mother and the child?' The British Columbia COU^ of Appeal dismissed an appeal from the defendant in respect of his iiability to the cl~ild.~'~However, the Court refused to characterise the child's claim as one for 'wrongful life' fmding that it could be determined in stead on ordinary negligence principies.g. The Court said that whiie the negligence aiieged with respect to the mother extended to the defendant's post-operative care, namely a faiiure to detect in a timely manner that the abortion had failed, the negiigence alleged with respect to the child was restncted to the abortion procedure itseif?' As such, the Court was able to find a separate duty of care owed by the defendant to the foetus not to injure it if he failed in meeting the duty owed to the mother to perform the abortion properly.s2 Paraphrasing the cooclusions of the trial judge, the Court said,

in Our opinion thc principles of negiigence do not stand in the way of recovery for this plaintiff. We think that a surgeon on performing an abortion in a case such as this owes a duty of care to the mother to perform his task properly but at the sarne time owes a duty of care to the foetus not to hann it if he should fail in meeting the duty of care he owes to the rno~her?~

376 Ibid. [Ernphasis added]. Ibid. ( 199 1) 75 D.L.R. (4Lh)668.

"( 1992) 94 D.L.R. (4') 487 (B.C.C-A). Lave to appeal to S.C.C. refused 99 D.L.R. (4") vii. Ibid. at 503: 'The first thing tliat must be said here is thai in our opinion this is nota 'wrongfu1 life* case as asserted by the defendant. The plaintiffs say this case falls to be determined on ordinary negligence principles and we agree.".

3' Ibid. at 489,505. "' fbid. at 503-504. 383 Ibid. at 504. Accordingly, the Court was able to characterise the child's action as an ordinary prenatal injury case and did not need to rely on any aüeged "legal obligation to the foetus to teminate its life as was the position in McKay- 9, .384

Anzdt v. Smith, which has been attnbuted with recognising the 'wrongful birth' cause of action in Canada, also initialiy involved a claim by a congenitdly disabled child, which was subsequently abandoned at triai? The child's mother brought a claim on behaif of her child and herself alleging that her physician was negligent in failing to wam her of the risk of birth defects from chicken pox. Hutchinson J., whiie accepting the validity of the 'wrongful birth' cause of action based on the New York Court of Appeai decision in Becker v. Schwartz, disrnissed Mrs- Arndt's clah on the ground that a reasonable person in her circumstances wouid have chosen to carry the baby to full term. After reviewing the American and EngLish authorities on 'wrongfd Life', he als~endorsed the decision of the plaintiffs to abandon the child's ~lairn.~~~

The British Columbia Court of Appeal was of the view that the triai judge had erred in the application of the test for factual causation in Reibl v. Hughes with respect to the mother's daim and a new trial was ordered. As the issue of damages was not argued before the Court, no definitive statements were given with respect to the principles to be appiied in the assessrnent of darnages in a 'wronegfül birth' action. However, the Court in obiter, which incidentally was the sarne Court that allowed the child's action 2 years earlier in Cherry v, Borsman, also endorsed the decision to abandon the child's 'wrongful Life' claim at trial?

su Ibid. at 503. 585 Arndt v. Smith (1 994). 93 B.C.L.R. (2d) 220 (B.C.S.C.). Ibid. He said rhat 'There is no viable suit in this province for 'wrongful life', Le. a daim by a person born with disabilities asserting he or she should not have been bom at all. Thus, 1 End the abandonment at trial of this claim by [the infant] was welI founded.". 3a7 Amdr v. Smirh (1995) 6 BCL-R. (3d) 201, 126 D.L.R. (4h) 705 at 709 (B.C.C.A.)[cited to D.L.R-1. On further appeal to the Supreme Court of Canada, the case tumed solely on whether the trial judge had properly applied the test for causation in Reibl v. ~u~hes.~The majority was of the view that he had and ordered that the trial judgement be restored. As one judge recently concluded, "[tlhus the claim for wrongful birth slipped quietiy into Canadian tort law simply as a type of medical malpractice case without any fundamental analysis or delheation of the extent of such a ~laim.".~~However, if the 'wrongful birth' cause of action was received into Canadian law without any fundamental analysis of the nature or extent of the claim, the 'wron,aful life' cause of action was aven shoa shrift indeed, The British Columbia Court of Appeal in obiter in Arndt v- Smith, dismissed out of hand the cause of action in no Iess than one line.jgO

Consistent with this approach, Jennings J. of the General Division of the Ontario Court in Mickle v. Salvation Amy Grace Hospi~al,struck out Sarah Mickle's action for wrona&l life on a motion to dismiss?' Sarah Mickle was bom with CHILD Syndrome (congenital hemihypoplasia ichthyosis erythroderma and limb deficiencies) and apart fiom her parents 'wrongful birth' c1aim3~~she brought a 'wronghil life' action against the laboratory technician and radiologist for negiigently failing to detect her disabilities on ultra~ound?~~In a brief judgement, and without much discussion of the facts of the case or the authonties, Jennings J. -g-anted the motion of the defendant to strike out the action. Jennings J. adopted the obiter remarks of the British Columbia Supreme Court in Arndt v. Smith, and concluded that "it is plain and obvious that the cornmon law that will be applied in Ontario knows no action for 'wrone&l life. 91' .394

y18 Arndt v. Smirh. supra note 37 1, For discussion of the test the Supreme Court of Canada adopted, see further, irtfra noies 486489 & accompanying text. Mickle v. Saf~~ationAmy Grrice Hospiral. supra note 28.

3m Anidr v. Smirh. supra note 387 at 709. 39 1 MickIe v. Salvation Army Grace Hospital(unreported) . 392 Supra note 389. 393 Supra note 39 1. In Krangle v. Brisco, Justice Low of the British Columbia Supreme Court, made obiter remarks to the effect that no action Iay for 'wronghil He' in caoadrt3% The case was a wrongful birth case, in which Mr. and Mrs. Krangle were awarded damages for the fuianciaï and emotional loss of carhg for a chiid with Down's syndrome as a resdt of the negiïgent failure of the defendant physician to advise of the availabiiity of amniocentesis. However, Low J. noted while considering the damages awarded to the parents, that "[n]one of the cases cited go so far as to award darnages to the person whose birth is the subject of the action solely on the basis that such person was boni. 9' .3% She said "[tlhat was why there is no claim for non-pecuniary damages for Mervyn and no claim on his behalf for ïoss of eaniings. ,r .397

More recently, in Jones v. Roshrig, the British Columbia Supreme Court dismissed the daim of a child born with Down's syndrome for the failure of his mother's treating physician to advise her of the availability of amniocentesis? Macaulay J. referred fleetingly to McKay, and the obiter remarks of Hutchinson J. in Adv. Smith and other Amencan authorities and concluded simply, "the infant plaintiff has neither alieged any cognisable duty or recoverable darnages9' .399

However, in Bartok v. Shokeir, the Saskatchewan Court of Appeai affirmed the decision of the lower Court refusing to strike out a 'wrongful life' claim as disclosing no reasonable cause of acti~n.~Kun Bartok, by his mother and Iitigation pardian, claimed damages for bis birth with rnicrocephaly against the defendant geneticist who negligently rnisadvised his parents that his older brother's condition did not have a genetic origin and was not hereditary.

'"Ibid. Sec also Pamore v. Weorhersrm. supra note 37 1 (Child's 'wmngful life* action clairning defendants' negligencc in failing to detect spina bifida was dismissed at the opening of triai with the consent of the Public Trustee on the bais that none OF the defendants caused or contributed to the child's condition).

395 Supra note 28. Ibid. at 721. '" Ibid. See also the obirer remarks of Lax .J. in Kealey v. Berezowski. supra note 37 1. 3Ya [1999] B.C.J. No.647 (T.D.), online: QL. 399 Ibid. 400 Barrok v. Shokeir, supra note 370. Relying on the defendant's advice, Mr. and Mrs. Bartok conceived Kurr, who was subsequentiy bom sufferinp from the same debilitating ~ondition?~ in refusing to strike out Kurt's claim in the Saskatchewan Court of QueenTsBench, Pritchard J.? observed that, "[tlhe arguments advanced by both counsel and the difficult and conflicting national and international case law they rely upon makes it abundantiy cIear that the infant plaintiff's claim is a complex, difficult and novel one that treads in substantially uncharted areas of tort law.TT .402 Pritchard J. quoted Madam Justice Wilson in Hunt v. Carey Can, I~c.,~~who said that "[tlhe fact that a pleadiag reveals 'an arguable, difticult or important point of Iaw' cannot justify striking out part of the statement of claim" and that only by allowing the claim to proceed could we "be sure that the cornmon law in general, and the law of torts in particular, will continue to evolve to meet the iegal challenges that &se in our modern industrial society.".~ On hirther appeal to the Saskatchewan Court of Appeal, Lane J.A.. affirmed the decision of Pritchard J and observed that the issue of whether or not a cause of action for an infant against a doctor for failing to diagnose a genetic condition, existed in Canada was more appropriately detennined at trial with "a full factual foundation97 .105

Ln the unreported combined case of Slrama v. Mergelas & York-Finch Central Hospital and Norvac-=yk v. Majewski, Sharpe J. of the Ontario Court of Justice also refused to grant the defendants motion to strike out the child plaintiffs' 'wronghil life' c~airns.~Sharpe J. noted the "considerable body of authority rejecting such claims" that the plaintiffs would have to overcomc in order to succeed. In particular, he referred to the duty issue, the problems with respect to the assessrnent of damages and the "senous question as to the causal comection

'O' 'Microcephaly' is characterised by a shmnken, underdeveloped brain and associated blindness. lack of cognitive ability and little or no ability to speak, communicate or comprehend: Ibid. Barrok v. Shokeir. [1999] 2 W.W.R. 386, at 388, II9981 171 Sask. R. 67, (Sask. Q.B.) [Cited to 2 W.W.R].

'O3 Ihid. at 409. .al Ihid. at 388.

MS Supra. note 370 at 157. 406 (24 October, 1997) (Ont, Gen-Div.) 95 CU 94854. between the wrong of the physician and the hmsuffered. r, .407 However, in aüowing the daim to proceed to trial, Sharpe J. noted that this was "an evolving area of law" and that the issue had "not been considered in depth by Canadian courts.". He noted that it was "only recently that the parents 'wronpful birth' claim" had been recognised in Canada and that "the legai regirne relating to abortion has undergone significant change resulting in an expanded scope of parental choice. 93 .408

Banneman v. Mills is the only Australian case to consider the validity of the 'wrongful Me' cause of a~tion.~The child plallitiff was born with disabilities fkom congenitai rubeila syndrome afier the defendant physicians negiigently failed to diagnose the mother's infection with rubella and to advise of the option of abortion?" Refehg to McKay, Master Greenwood of the New South Wales Supreme Court granted the fmt defendmt's motion for surnrnary disposal of the chiIdls daim concluding that "the tort of wrongfui Life is not known to the cornmon Law and even if it were it would not b]possible to assess any dmage in monetary terms."*ll He observed that the parents of a disabled child who had not been advised of the option of terminating the pregnancy would probably have a 'wrongful birth' actionT2 However, there couid be no action by the chiid because it was impossible for the court to determine whether facing a Iife with disabilities was worse than no life nor could darnages for life be assessed when the starting point is a comp~sonwith non-life. 4 13

More recently in CES v. Superclinics (Ausr) PL, the New South Wales Court of Appeal allowed the parents of a healthy child to succeed in a 'wrongful conception' action against a medicd clinic and its treating physicians for negligently failing on several occasions to

M7 Ibid. as Ibid.

109 Bannerman v. Miiis ( 199 1) Aust. Torts Reports 4[8 1-079,68,659 (N.S.W. SC), a10 Ibid. '"Ibid. at 68,663. 'Iz Ibid.

'13 '13 Ibid. diagnose her pregnancy.'"4 The Court ovemled the triai judge's finding that abortion would have been unlawfûl under the applicable sections of the Crimes Act 1900 (NSW), which prohibited abortion except in circumstances where the healthcare provider honestiy beiieves on reasonable grounds that it was necessary to preserve the woman's health. Kûby C.J.A., in the majority, held that economic, social and medical circumstances attendant on raising an unwanted child could constitute the requisite danger to the woman's health!15 However, the Court did not consider the validity of a child's claim for 'wronghil life' in Austraiia or for that matter, the parents daim for 'wrongful birth'.

The few Canadian and Australian Courts that have had occasion to consider the 'wrongful life' cause of action, have tended to regurgitate the reasons relied upon by Arnerican Courts and the English Court of Appeal in McKay without offering any detailed or fundamental analysis of their own. This is unfortunate and does little to help clarify the issues that underlie the action or to sort out the iilegitimate reasons from the legitimate ones. More 'wrongful life' cases are bound to be brought before Canadian and Austraiian Courts in the future. However, it remains to be seen whether the issues will be tackled with any greater clarity and sophistication.

414 CES v. Superclinics (Ausr.) Pty. Lrd, supra no te 37 1. Kirby C.J.A. & Priestly J.A. Meagher J.A. dissenting. Ibid. at 60. CHAPTER 3: ANALYSIS OF 'WRONGFUL LIFE' ACTIONS: A WRONG WTHOUT A REMEDY

"For wherever the common law gives a right or prohibits an injury, it also gives a remedy by action; and therefore, wherever a new injury is done, a new method of remedy must be pursued, ,416

3.1 Introduction & Overview

It is apparent from the review of Anglo-Amencan case Law on 'wrongful life' actions in the previous chapter that there are a variety of reasons relied upon by the courts for rejecting the action. Among the more common reasons given by Anglo-American courts for rejecting 'wrongful life' actions are fmtly, that a child has no right not to be bon- Secondly, the birth of a child with congenital disease, when the only aitemative was not to be boni, is not a legally cognisable hann. Thirdly, the aLIeged 'logical impossibility' of assessing the child's damages according to traditional tort pnnciples, which would require a comparison between an impaired life and non-existence?' While these reasons are Iargely interrelated, they are not often expressed clearIy or consistently.

Furthemore, what at fmt blush rnight seem like a 'logical' legal reason for denying the action is often on closer analysis imbued with subjective value judgements. These may appear in the guise of 'policy' reasons for rejecting the action, including the argument that allowing the action would be contrary to the principle of the sanctity of human life. It has also been suggested that allowing 'wrone@ùl Iife' actions would open the doors to litigation by children against their parents, complaining of the circumstances of their births, Say for being born of a particular religion or race or for the colour of their eyes.

This Chapter will critically analyse the reasons given by Anglo-Amerkan courts for refusing to recognise 'wrongful life' actions. It will be argued that the many of the metaphysical

416 W. B lackstone, Cornnientanks 123 cited in dissenting judgement of Dooley J. in Renslow, supra note 72 at 1256. 417 As will be seen, this 1stargument has both a theoretical and practical component to it, dilemmas which the Courts consider intractabk in a 'wronghil Life' action can be avoided if the emphasis is shified, in defining the child's injury, €rom the fact of her bîrth to the congenital disabilities of which she cornplains. On this approach, the child's claim could be seen simply as another kind of claim for prenatal injury under ordinary negligence principles. Howeveroeven if it is thought that the fact that the child would not have existed 'but for' the defendant's wrong canot be overlooked, it is argued that her injury can nevectheless be measured by comparing her impaired iife with non-existence. Furthemore, practical standards can be used to measure the child's 'cornpensable loss' in behg born, which would not necessarily result in a 'windfall' to the chiid,

It will be argued that the basis of the child's claim could be understood as an action dependant upon, but not necessarily denvative from, the parents recognised right to make an informed decision whether to avoid the birth of a disabled chiid. In this way, the child's rïght is to have life-determining decisions made on her behalf by her parents, rather than any claimed right not to be born.

The approach to the analysis in this Chapter will broadly follow the traditional requirements in negligence law of duty, breach. causation, injury and the assessments of damages, so far as they relate to the 'wrongful Iife' cause of action. It is important to keep in mind that the question presented for review by the Courts in these cases is not whether the plaintiffs should ultimately prevail in the litigation, but rather, the narrower question of whether their cornplaints state a valid cause of action. To this extent, the aileged facts are assumed by the courts to be tr~e.~~'

JI8 E.g. Becker v. Schwartz, supra note 1 1 at 8 10; Howard v. Lecher, supra note 296 at 65; Berntan v. Affan, supra note 1 1 al 1 1; Blake v. Cntz. supra note 10. It is also wonh bearing in mind that the question of darnages in personal injury cases is generally determined in American jurisdictions by jury, while in the Commonwealth, ir is usually judges alone who decide these questions. 3.2 The Duty Question: A Right not to be Born or a Putative Right to Have Life-Creating Decisions made by One's Parents?

Most of the courts that have considered the 'wrongful life' cause of action have either found or assumed the existence of a duty of care owed by the defendant to the prospective ~hild?~ The prenatai injury cases discussed in the fmt chapter clearly establish that a child who was not yet born or conceived at the time of the wrongdoing could nevertheless be a foreseeable plainrifithe object of a duty of care in a neagence action if subsequently born alive.

In Pitre v. Opelousas Gen, Husp., the Supreme Court of Louisiana referred to public policy reasons which would support "recognition of a legal duty to a child not yet conceived but foreseeably harmed by the negligent delivery of health care services to the child's parents. 9, .420 The Court said that "When a physician knows or should know of the existence of an unreasonable risk that a child will be born with a birth defect, he owes a duty to the rinconceived chiid as well as to its parents to exercise reasonable care in warning the potential parents and in assisting them to avoid the conception of the deformed child. 9, .421

Once the existence of a duty of care is established, the question becomes the nature and extent of that duty Some courts have refused to recognise the 'wrongful life' cause of action on the ground that the child had no legally protected right or interest in nor being borr~.~~

-119 E-g. Cti riender, supra note 9 at 488; Turpin, supra note 9; Walker v- Marr. supra note 14 at 739; Procanik v. CiIlo. sripra note 10 at 762; Azolino v. Dingfelder, supra note 259 at 532 ("we assume arguendo that the defendants owed a duty to [Michael Azzolino] in utero as weI1 as to his parents."): Lininger v. Eisenbaum, sripra note 9 at 1209.

'31 530 So.7-d 1 15 1 (La. 1988) at 1157 (negligence in performing tuba1 ligation resulted in binh of albino child) [Emphasis added]. See also Harbeson v. Parke-Davis. supra note 2 at 495("We now hold that a duty may extcnd to pcrsons not yet conceived at the tirne of the negligent act or omission.". The Harbeson Court also concluded that "[tlhe imposition of a duty to the child will foster the societal objectives of genetic counselling and prcnatal testing and will discourage medicd mdpractice" as well as "providc more cornprehensive and consistent compensation for those injured by such medical maipractice.". "' Pitre. Ibid. [Emphasis added]. But see Miller v. Duhan. 637 S.W.2d 183 (Mo. App. 1982) at 186 ('To recognize the gwrongfullife' ton we wouId be rcquired to find that a child has a right not CObe born."); Kush v. Lloyd 616 So. 2d 415 (ma. 1992) at 423 ('There is no right to remain unborn."); Siernieniec. supra note 19 at 700("Because no right not to be born. even into a Iife of hardship, has ever been recognized in our judicial system, Adam Siemieniec has suffered no legally cognizable injury by king brought into existence afflicted with hemophilia,"); Bruggeman v. Schmike, Most notably, the Engiish Court of Appeal in McKay, proclaimed, rather melodramaticaliy, that a doctor did not owe a 'dury to the foetus to urge its destruction9, .323 Stephenson L.J. explained that because the child in McKay was not injured by the defendants' negligence, but by the rubella which infected the mother, her "right not to be injured before birth by the carelessness of others" had not been infringed by the defendant? He concluded that the "[tlhe only duty which either defendant can owe to the unbom chiid infected with disabiïng rubella is a duty to abort or kill her or [not to] depnve her of that opportunity."? To this he retorted rhetorically, "how cm there be a duty to take away life? How indeed can it be la~ful?"-~*~Such a duty, he said, might be owed to the mother, but it couid not be owed to the chi~d.'~~

However, Stephenson L.J. arguably over-states the duty or interest at stake in a 'wrongful life' action. A nght to be 'aborted' or 'killed' would be cornpletely misplaced in a case such as Curlender, where the relevant duty arose before the child was conceived and abortion was never at issue. Furthemore, the decision whether or not to have an abortion is clearly the mother's. The duty of the medical professional can be no more than to advise her of the option of abortion and the pros and cons of having one. This was the view of Gnffiths L.J., who said, "[ilf there is a risk that the child will be born deformed, that risk must be explained to the mother, but it surely cannot be asserted that rhe doctor owes a duty tu the foetus to urge 2s destruction.77 .428 The English Court of Appeal in McKay was clearty influenced in

supra note 9 at 642 ("Alegal right not to be born - to be dead. rathcr than to be alive with deformities - is a theory completely contradictory to our law."); Gleirman, supra note 10 at 1439: ('To recognize a right not to be bom is to enter an area in which no one could find his way.".). McKq, supra. note 10 at 1178 Per Stephenson LJ. [Emphasis added]. See also Ackner LJ. at 1 188: 'Thus, the duty of care is said to involve a duty to the foetus, albeit indirectly by advice to the rnother, to cause its death.". 424 Ibid. at 1 178. This is the right or interest at stake in the ordinary prenatal injury cases discussed in chapter 1. Ibk?. 426 Ibid. at I 179. ""Ibid. at 1 180. See also Ackner LJ. at 1 188. 4% Ibid. at 1 192 per Griffiths [Emphasis added]. their decision by the ill-informed view of the English Law Commission that recognition of the duty would place on medicd advisers a "subconscious pressure to advise abortions39 . 429

Even in so far as the Court says that it is a "necessary basic assumption" of the 'wrone@l life' action that a child has a right nof to be born or to be born perfect or "whole or not at dl', 430 , the Court overstates the duty or interest at stake. A child in a 'wrongful life' action need not rely on a claimed right not ro be born any more than a child in an ordinary prenatal injury case needs to rely on a claimed right to be born "as a whole functional human beingW."l Any claimed nght nor to be bom is arguably irrelevant to the question of the nature and extent of a duty of care in a 'wronghil life' actionT2

Rather, the duty of care in a 'wrongful iife' action can arguably be adequately explained as an incident of, though not necessarily derivative from, the parents' nght to make an informed decision whether to avoid the conception or birth of a disabled child. Correlative to the recognised right of parents to prevent the conception or birth of a disabled child in a 'wrongfûl birth' action is the duty of the health care professional not to deprive them of the opportunity to make an infomed de~ision.~~~This nght forms the foundation of the parents

Repon on Injuries ro Unborn Cliildren. supra note 36 at para 89. hfcKay,ibid, per Stephenson LJ. at 118 1; Ackner L.J. at 1 187. Cf: Griffiths LJ. at 1 192. This was aiso the view of Judge Wachtler (Gabrielli J. agreeing) in Becker v. Schwarrz. mpra note 1 1 at 8 18- 19. 430 McKay. ibid. at 1 18 1 per Stephenson LJ, While some American courts have. both in the context of 'wrongful life' actions and in the prenatai injury cases discussed in Chapier 1 recognised a right to be boni with sound body and rnind, the child's Iegally protected interest in an ordinary prenatal injury case is probably more accurately chancterised as a "right to be born free from prenatal injuries foreseeably caused by a breach of duty to the child's rnother": Renslow, supra note 72 at 1255. Note however, that the Illinois Supreme Court's decision was based on a breach of duty to the child, not to its mother. Recognising a nght of the child to be born as "a whole functional human king" rnight produce untenabte results such as sui& "for less than a perfect birth": Becker v, Schwarrz, supra note 1 1 at 413. Sce also Capron, siipra note 27 at 660. 432. To the extent that the claimed right not to be boni in a 'wrongful Iife' action touches on the question of whether the birth of a child can be a legal injury, see further below. To the extent bat the claimed right not to be born in a 'wrongful life' action is analogous to a clairned right to be born which might form the foundation of a 'wrongfuI death*action for a stillborn foetus discussed in chapter 1, this analogy is obscwed by the 'born alive' rulc, which wouId prevent any such claim for the 'wrongful death' of a foetus. 433 E-g. Harbeson. supra note 2 at 483, Schroeder v. Perkel, siipra note 18 at 834; Speck v. Finegoid, supra note 17: Blake v. Cnc. supra note 10 at 3 19. action for 'wrongful biah' and is the rationale behind genetic counseiiing and the legal doctrine of infomed consent. in a 'wron,@l Life' claim, it could be argued that a doctor who treats or advises prospective parents assumes responsibility to both the parents and the unboni child. Just as the parents rely on the treatment and advice of the doctor in making a decision whether to avoid the conception or birth of a disabied chiid, there is reliance by the chiid through the agency of the rn~ther.~~The mother, and perhaps aiso the father, is informed on the child's behalf because the doctor obviously cannot inform an unbom or unconceived chiid- But also because the parents histoncaiiy have both the right and the duty to make such a decision on the child's behalf. Accordïngiy, the duty to the parent and to the child is the sarne from the perspective of the doctor so that a breach of duty toward the parent by negligently fading to provide that information, is also a breach of the duty owed to the prospective child?

The fact that the duty owed to the parent and to the child is the same from the perspective of the defendant and that they might be owed to the mother and chiid concurrently does not necessarily mean that the child's claim is derivative of the mother's. The child's interest in avoiding a Ive of physical disability is not identical to, although it may be consistent with, the parents interest in avoiding the birth of a disabled chiid, The parents might have been motivated to avoid the child's birth for a variety of reasons, inciuding, the financial and/ or

434 The elements of 'assumption of responsibility' and 'reliance' have apparently ken sufficient to overcome the obstacle of recovery for pure economic loss: E-g. Fleming, supra note 50 at 189ff. This is aiso the preferred approach put forward by Kennedy & Gmbb, supra note 4 1 at 936. It is also consistent with the approach of Clarke JA in X and Y v. Paf, supra note 89 at 44; [1992] 3 Med. LR.195 [Cited to (N.S.W.L.R)] who cornmented. 'The fundamental elements underlying [the doctor's] proximity relationship with his patient were assumption of responsibility and reliance. The doctor assumed the responsibility of exercising due care in the treatment of his patient and the patient reIied upon him to administer that treatment with due care. Furthemore. the doctor was working in an area in which he could, if he were not careful, so damage his patient and the child she was canying that either that chiid or children later born to the patient might suffer damage.". "" This is ais0 the approach advocated by Capron. supra note 27 at 660: "when a physician or other genetic counselor wrongfully fails CO disclose information about genetic risks material to a couple's decision to bear a child, he or she has breached a duty owed both to the couple and to the prospective child.". But cf: Wafker v. Man,supra note 14 at 740 ("In short, the ability to decide questions of conception or termination of pregnancy resides in the parents, not the fetus. The Iaw protects parents' rights to make decisions involving procreatic?n. Because defendants negligently failed to provide the parents with information that would have prompted Laura to cxercise her right to terminate the pregnancy, any wrong that was done was a wrong to the parents, not to the entokmzl burden of raising a disabled child? As with the duty of care in an ordinary prenatal injury case, the child's interest in having such decisions made by ber parents does not crystallise until the child's live birth with such congenital disabiity or disease, at which time the cause of action accrues.

This analysis therefore assumes that the parents decision to avoid the conception or birth of a disabled child is made both in their own interests and in the best interests of their future cMd- It is arguably consistent with the pnnciples discussed in the fht chapter that prior to the child's live birrh, the rnother and chiid are the sme Iegal enti~!~' The point is not to impIy that the parents' decision to avoid the child's conception or birth is necessarily the 'nght' one.438 Rather, it is to acknowledge that society and the law have placed the right to make this decision with them. Parents are usually in the best position to know their financial and ernotional ability to cope with the care of a disabled ~hild?~Accordingly, the interests of the parents and the child in avoiding the child's conception or birth are presurnptively consistent. Furthemore, they are capable of king protected by the same duty of care owed by the defendant physician who, after dl, was specifically engaged for the purpose of providing pre-natal genetic counselling.

The conclusion that the child in a 'wrongfbl life' action could be owed an independent duty of care such that the failure to inform the child's parents of the risk of disability or disease arnounts to a ivrong to both the parents and the chiid fin& support elsewhere. The Califomia Appeal Court in Curlender rejected the notion that a 'wrongfd life' action involves a

fetus."). See also James G. v. Caserta, supra note 1I (the "duty to inform does not extend to the unborn child as it is the parents' decision to risk conception or to terminate a pregnancy."). aM In this way. the parents' interest in 'a wrongful birth'. and for chat matter Wrongful conception' actions has sometimes been characterised as analogous to a claim for economic loss: See further infra note 540 & accompanying text. 437 See also Capron. supra note 27 at 654 ('The child is merely assening that the decision whether the child would have been better off not having ken bom should be Ieft with the child's parental guardians', its parents.").

U6 Clearly. members of the 'pro Me' movement will almost universally argue that such a decision is Wrong'. J39 Some people argue that it is the task of society and not parents to provide resources to care for severely disabled children. However, the reality is that rarely are such resources, if availabie at dl, sufficient. 'claimed right not to be born '440. The Coua preferred to Say there was "a duty owed by medical labontones engaged in genetic testing to parents and their as yet unborn children to use ordinary care in administration of available tests for the purpose of providing information concerning potentiai genetic defects in the unborn. ,? .441

Furthemore, while effectively partly ovemiing the decision in Curlender, the Court in Turpin v. Sortini said that in deciding whether or not to bear a child, parents may presumptively consider the interests of their future ~hild.~~~The Court concluded that when a defendant negligently fails to diagnose an hereditary condition, "he hamis the potential child as weIl as the parents by depriving the parents of the information which rnay be necessary to determine whether it is in the child's interest to be bom with defects or not to be born at

In a dissenting opinion in Beman v. Allan, Handler J. considered the possibility of a claim for 'diminished childhood' pursuant to which the child's cornplaint would be the loss suffered as a result of the parents 'diminished parental capacity' from having a disabled child? Whiie an independent action for 'diminished childhood' has been criticised and is unlikely to find favour among Anglo-Arnerican courts, some of the observations of Judge Handler in relation to the duty of care are pertinent- He said that the duty to the child's expectant mother in a 'wron,bfiil birth' action encompassed a duty owed to the unbom child such that the breach of that duty independently injured both mother and ~hild.~~

Developing on this argument in Procanik v. Cillo, he said that when a defendant wrongfiilly fails to disclose information about genetic risks material to a couple's decision to bear a

40Supra, note 9 at 496-97. 41Ibid at 494. But cf: James C.V.Caserta, supra note 1 1 at 88 1. 442 Trirpin, supra note 9 at 962. * Ibid. 444 Berman v. Allan. supra note 1 1 at 20. Justice Handler also developed Further the concept of an action for 'diminished childhood' in Procanik v. Cillo. He said that "[tlhe essence of the injury oFa diminished childhood is that it can be a mirror reflection OF the diminished ability of the parents to care for their child.": Supra note 10 at 766. child, he or she has breached a duty owed both to the couple and to the prospective child" As a consequence, he said, the chiid might be forced to Live out the counter-decision of his parents, with ail of its severe burdens?' He spoke of the child's claim in a 'wronghtl life' action as if it were some kind of familial tort in which "[tlhe foreseeability of injury to members of a family other than one irnrnediately injured by the wrongdoing of another must be viewed in light of the legal relationships among family members.91 .448

Justice Mullarkey, dissenting in Lininger v. Eisenbaum dso would have allowed the child' s claim for 'wrongful me', but as an incident of the parents right to make an infonned decisi~n.~~Justice Mullarkey said that "[slince the claims of Pierce and his parents are so closely related and, indeed, mutually dependent, 1 see no reason to deny one while allowing the other to stand. 9, .450 He further said that "[tlhe Liningers sought the genetic counselling not only for themselves but aiso for their htture children."?' While neither they nor Pierce could claim any right that Pierce be born a perfect child, they could clairn that "in reliance on the physicians' advice, they intended to assume only the ordinary risks inherent in any decision to bear chi~dren.":'~ They did not intend to assume "the very high risk of a one in four probability that Pierce would be bom bli~~d."?~~

The claims of both the father and the mother have been recognised, to varying degrees, in both 'wrongful birth' and 'wrongful conception' cases, even though they were not always both privy to the doctor-patient relationship? in niake v. Maurice, the English Court of

445 Ibid. See also Kennedy & Gmbb, supra note 4 1 at 97 1-72. 4-46 Procnrtik v. Cillo. supra note 10 at 77 1. "' Ibid. +UI Ibid. 4-49 Lirringer, supra note 9 at 12 14.

'50 Ibid. "' Ibid. '"Ibid. at 1215.

453 Ibid. For example, there is uncertainty as to whether, and ifso, to what extent the father can recover for 'wrongful birth', in addition to the mother. E-g. Freeman v. Surfer, supra note 37 1. Appeal did not question the existence of a duty owed to the wife, who consulted the defendant surgeon together with her husband, in circurnstances where the defendant was held liable for fading to wam of the failure rate of va~ectorn~?~In Miller v. Rivord. the New York Supreme Court rejected the argument of the defendant surgeon that the complete absence of a doctor-patient relationship between himself and the patient's wife precluded the existence of a duty to the wife for a negligently performed vasectomy on her husband? The Court emphasised the fact that the defendant was mare that the main reason for obtaining the vasectomy was to protect Mrs. Miller from the deletenous affects that a fourth prepancy would have on her health, and that Mrs. Miller relied on the defendant's assurances in not taking additional contraception?

Furthemore, in many of the 'wron,oful Lfe' cases, a duty of care was held to be owed to the unborn child notwithstanding that it was the child's sibling and/ or parents that was the irnmediate patient of the defendant physician. For example, in Park v. Chessin, the plaintiff's parents were consulted as to whether polycystic disease, which killed her older sibling shortly &ter birth, was hereditary!'s In these cases, the Court had no difficulty holding that the defendant owed a duty of care to the plaintiff's parents as well as to their unborn children who would be directly affected by the defendants' negligent failure to warn that the patient had a hereditary disease. In these cases, the defendant had assumed respotzsibility to the plaintiff s parents to provide careful advice and the parents had relied on this advice in conceiving their second hii id?'^

Thakr v. Maurice. sitpra. note 369.

J56 Miller v. Rivard (1992) 585 NYS 2d 523 (Sup Ct. NY App Div). '" Ibid. The action of both parents was recognised in the 'wrongful birth*claim in Becker v. ScI~warrz.supra note 1 1. See also Turpin v. Sortini, where the plaintiffs older sister, Joy. was exarnined by the defendant. Similady, in the Canadian case of Banok v. Shokeir, supra note 370, the plaintiff's older brother was king exarnined by the defendant. 459 Some medical negligence cases have, moreover, found the existence of a duty of care owed to third party non-patient, even where there was no direct assurnption of responsibility or reliance: E.g. Tarasoflv. Regents of the Universiry of California55 1 P.2d 334 (Cd Sup-Ct- 1976) (psychiatrist owed duty to warn a third party acquaintance of the violent intentions of his patient); iunderos v. Flood 55 1 P2d 389 (Cd 1976)(failureto report to authorities a case or suspected child abuse); Davis v. ffzim (1 983) 335 NW 2d 48 1 (Mich Sup Ct)(dangerous psychiauic patient); Gammill v. United States (1984) 727 F 2d 950 (10~Cir)(infectious hepatitis and gastroenteritis). However, it is not clear whether this would be the position in England, Canada or Ausualia, Finaily, in cases involving the rÏght of a competent ad& to refuse life-saving or life- sustaining treamierst, Angio-American courts are generaliy careful not to characterise the plaintiff s daim in such cases as an assertion of a nght to die so much as a right to make an informed de~ision.~~~In this way, the plaintiffs right in such cases is considered to be an aspect of the right of a person to self-detemination such that treatrnent performed without the patient's consent is a batteryal Accordingly, in Bouvia, the California Court of Appeal observed that by refirsing to continue artificial life-support, Elizabeth Bouvia was not asserthg a righr to die, but a right to make an informed decisi~n~~~~By analogy, in a 'wrongful Iife' case, the chiid is not asserting a right not to be born, let done a right to be 'aborted' or 'killed', merely an interest or right in having ber parents decide whether to avoid her conception and or birth.

Assuming a wrong to the child then, the questions that remain as part of a legal analysis, are whether the defendant's negiîgence resulted in a Legally cognisable hum to the child and if so, whether the child's datnages are reasonably ascertainable. These have been the two most troubling issues conceptually for the Courts in assessing the validity of the 'wron,ofuI life' cause of action and will be considered in the foUowing sections of this Chapter.

where the element of proximity is clearly required. But see Jane Doe v. Metropolitan Police ( 1990). 74 O.R. (2d) 225 (Div. Ct.)(Toronto police had duty to warn class of white female victims living in 2"d floor baicony apartrnents of rapist). See further, Ernest J. Weinrib, Tort Law: Cases & Materials (Toronto: Emond Montgomery Publications, 1997) at c. 10. 460 These cases are discussed further below at notes 475ff. & accompanying text, 46 1 E.g. Schloendorf v. Sociery of New York Hosp 2 1 1 N.Y. 125 at 129-30 (1 9 14) per Judge Cardozo ("Every human being of adult years and sound rnind has a nght to determine what shail be done with his own body, and a surgeon who performs an operation without his patient's consent cornrnits an assault,"). See also Bouvia v. Srrperior Cortn (1986) 225 Cal Rpu 297 at 304 (Cal. C.A.)[hereinafter Bouvia]. Note that Amencan Courts since Bouvia have tended to ground the right to reficse medical treatment in the common law right of 'informed consent' rather than the constitutional right of privacy: Cnczan v. Director, Missouri Depanment of Healrh ( 1990) 497 U.S. 26 1 (US.Sup. Cr.) at 27 1[hereinafter Crutan]. But see furcher infra notes 754-756 & accompanying text, 462 Bouvia, ibid at 306. 3.3 Causation, Omissions & Injury: An Analogy with the Lack of Informed Consent Cases

It is often claimed in a 'wron,oful life' action that the defendant did not cause the chiid's congenital disability, which was pre-determined fiom her genetic makeup, oniy her birrh? Unlike in an 'ordinary' prenatal injury case where 'but for' the defendant's neagence, the child would have ken bom healthy, in a 'wrongful life' action, 'but for' the defendant's negligence, the child would not bave been bom? Accordingly, it is clahed, the only injury for which the chiid can cornplain in a 'wrongful life' action is her birth. However, the birrlr of a chiId, even in a severefy disabled condition, cannot, it is said, constitute a iegaily cognisnble harm, and accordingly the action cannot lie.

The judgement of Ackner LJ. in McKay is iiiustrative of this reasoning, where his Lordship said,

The disabilities were caused by the rubella and not by the doctor. .. . What then are her injuries, which the doctor's negligence bas caused? The answer must be that there are none in any accepted sense- Her cornplaint is that she was allowed to be bom at dl, given the existence of ber pre-natal injuries. .. . She cannot Say that, but for his negligence, she would have been born without

463 E.g. Gleiirnan, supra note 10 at 1 1 (The defendant's negligence "neither caused the Mongoloid condition nor increased the risk that such a condition would occur."); Speck v. Finegold, supra note 17 at 119: ("[Tlhere is absolutely no basis upon which the defective condition of the infant can be attributed to the actions of the doctor-defendants.".); Procanik v. Cillo, supra note 10 at 763('The congenital nibella syndrome that plagues him was not caused by the negligence of the defendant doctors; the only proximate result of their negligence was the chiId's birth."); Alquijay, supra note 14 at 293-94 ("There may be a causal Iink between defendant's negligence and the child's existence, but not between that negligence and her impaired condition. ... While medical negligence may have allowed the child to corne inco existence, it did not cause the impairment which is her basis for relief. Thus, the child's claim for damages, if any, is too attenuated to atuibute to the negligence of the medical provider."); Azolino v. Dingfelder, supra note 259 at 532 ('The plaintiffs do not alIege that the negligence of the defendants caused Down's Syndrome in Michael Azzolino."); See also, Ellis v. Sherman, supra note 17 at 1329 ('The condition about which the plaintiff cornplains, a diseased Iife, was inflicted upon the phintiff not by any person, but by the plaintiff s genetic constitution,"), 464 E.g. Lininger v. Eisenbaum, supra note 9 at 1208("But for the physicians' alleged negligence, Pierce would have neither been burdened by the disadvantages of his impairment nor woutd he have expenenced the benefits of Iife. He simply would not have existed."). The 'but for' test of factual causation derives from the Latin, cartsa sine qua non (L. without which for): Cooper-Stephenson, Persona1 Injury Damages in Canada, 2* ed.(Toronto: Carswcll, 1996) at 763. her disabiiities, What the doctor is blamed for is causing or permitting her to be born at

However, the Courts arguably confuse the distinction between causation in a scientific sense and causation at law. It is true that the defendant in a 'wron,ofi life' action did not cause the child's disabilities in the same way that the defendant in Watt v. Rama, for example, caused the child to be bom disabled from his negligent driving. The defendant's negligence in Watt v. Rama, and in many of the prenatal injury cases discussed in the fmt Chapter, involved a positively inflicted injury on the foetus while in utero through the agency of the mother. However, the fact that the defendant's negligence was not a cause in the scientific sense of the childTs injuries cioes not necessarily absolve him of legal responsibility for them. Accordingly, the defendant's failure to prescribe gamma gobulin in Sylvia v. Gobeille was held to be a legal cause of the plaintiff's birth with congenital rubella syndrome, notwithstanding that the real cause of her congenital disabilities was ber mother's infection with Gerrnan measles during the fmt trimester of prepancy.

In the seminal Australian case of March v. Sframare (E. & M.H.), the Austraiian High Court confounded the distinction between factual and legal causation and distinguished them both from scientific and philosophicai notions of individual re~~onsibilit~.~The former Chief Justice of the High Court, Justice Mason, observed that "[tlhe law does not accept John Stuart MilI's definition of cause as the sum of the conditions which are jointly sufficient to produce it" and that "at law, a person may be responsible for damage when his or her wrongful conduct is one of a number of conditions sufficient to produce that damage. rr. 467 He considered that the two pronged test of causation "places too much weight on the 'but for' test to the exclusion of the 'common sense' approach which the cornmon law has aiways

McKay, supra note 10 at 1 189. See also Stephenson LJ. at 1 182: 'The only way in which a child injured in the womb can be cornpensated in darnages is by rneasuring what it has lost, which is the difference between the vaIue of its life as a whole and healthy normal child and the value of its life as an injured child. But to make those who have not injured the child pay for that difference is to ueat them as if they have injured the child, when al1 they have done is not having taken steps to prevent its king born injured by another cause...". 466 ( l99 1 ) 17 1 C.L.R. 506, at 509. (H.C. Aus.) [Hereinafter March v. Srramare]. 467 March v. Srramare (199 1) 17 1 C.L.R. 506 at 509 (Drîver who was specding while intoxicated when his car ran inro truck parked in the middle of the road was liable in negligence for 30% of the damages). favoured; and implies, or seems to imply, that value judgement has, or should have, no part to play in resolving causation as an issue of fact. r, .468

MarcCr v. Stramare was a case invoiving multiple suffrcient causes, where both causes were wrongfirl, namely the independent negligent act of the plaintiff in driving while intoxicated and the prior continuing negligent act of the defendant in parking his truck in the middle of the roadf9 The 'but for' test of causation does not assist in cases such as these because applying the test would resuit in a situation in whicti neither defendant was liable even though the conduct of each was a sufkient cause of the plaintiffs injury!'* The former Chief Justice criticised the 'but for' test applied as an "exclusive criterion of causation" saying that it led to "unacceptable results" that "must be tempered by the making of value judgements and the infusion of policy considerations. 7, -471 To the extent that the reasoning in March v. Stramare favours a 'common sense' approacb to causation, whether or not it is a case of multiple suficient causes? it is usehil in showing how an aitemative analysis of le@ liability might be derived in 'wron,@l Life' cases-

If the plaintiff s genefic predisposition is seen simply as one of the many 'background' conditions, which are jointly sufficient to account for the child's birth with cangenital disease, then the defendant's ~vronaf~rlfailure to identify this risk can be seen as a necessary or legd cause. Indeed, 'but for' the defendant's wrong, the child would not have ken bom with congenital disease. Perhaps it is simpler to completely discard the sometimes,

468 Ibid. at 5 15. 469 This is sometimes referred to as the 'The Multiple Sufficient Cause Problern': See further, Cooper- Stephenson, supra note 464 at 786 ff.

"O March v. Srraniare, supra note 467 at 5 16: "In uuth, the application of the [but for] test proves to be either inadequate or uoublesome in various situations in which there are muItiple acrs or events leading to the plaintiffs injury.". J7 l Ibid. at 5 16- 17. 472 Note that there is a significant body of opinion that accepts that no Iiability &ses in cases of 'multiple sufficient cause' where only one of the causes is rrrrongful: E.g. Cooper-Stephenson, supra note 464 at 788-89, 802ff. However, in a way, this ~Iassificationjust 'begs' the question. of which of the many possible conditions, which arc: joint!y suffrcient to produce an injury are 'causes' and which are merely antecedents or the 'backcloth' of events: E.g. Fleming, supra note 50 at 219. tautological classifications of 'causation' and simply Say that a defendaut is legally responsible for causing injury that the defendant had a duty to prevent.

It has been argued in the previous section, that a defendant doctor specificaily engaged to provide prenatal genetic advice has a duty to the parents and to rheir prospective child to advise of the material risks of the chiid king boni with congenital disabitity or disease- The defendant will be iiable for the losses that result from his negligent failure to advise of the risk of congenital disease if the nsk sought to be avoided by the parents materialises where it otherwise would not have.

Just because it is neither medically nor scientifically possible to isolate the plaintiffs congenital disabilities from the fact of her conception or birth does not mean that the defendant cannot be legally responsible for them apart from her birth. The reality underlying the 'wrona$bl life' cause of action is that the child cornplains not of her birth as an isolated event, but of her binh with disabilizy or The fact that the plaîntiff s congenital disabilities and her conception or birth are coexistent and that her disabilities could not have been avoided 'but for' her birth should not absolve the defendant of legal responsibilizy for creating the conditions that allowed them to materialise. Accordingly, Justice Kau ffman, dissenting in Speck v. Finegold, said that "[alny argument that this life of suffering is not the naturd and probable consequence of appellees' misconduct is rank sophistry.,r .474

By characterising the child's injury in a 'wrongful life' action as her congenital disabili~ rather than the isolated fact of her birth and by adopting a 'cornmon sense' approach to causation, it is not necessary to be preiiccupied with the plaintiff s 'otherwise condition' but for the wrong, namely nonexistence. The Curlender Court recognised this when it said,

473 Bg. Justice Riui, dissenting in the lower corn in Goldberg v. Ruskin. said, "the sober reality with which we as judges. must come to grips is hat Jeffrey Goldberg endured immense pain and suffering that he would not have had to endure had defendants not been negligent. To hold that he was not injured as a result of defendants negligence not only shunts reality but also imposes a cruel hoax upon the people involved in these mgic circumstances.".: Cited in Goldberg v. Ruskin, supra note 9 at 41 1- 474 Speck v. Finegold, supra note 17 at 1 18. The real crux of the problem is whether the breach of duty was the proximate cause of an injury cognisable at law. The injury, of course, is not the particular defect with which a plaintiff is afflicted - considered in the abstract - but it is the birth of plaintiff with such defect. The circumstance that the birth and injury have corne hand in hand has caused other courts to deal with the problem by barring recovery. The reality of the "wrongful Life" concept is that such a plaintiff bot. exists and suffers, due to the negligence of others. It is neither necessary nor just to retreat into meditation on the mysteries of life. We need not be concerned with the fact that had the defendants ~otbeen negligent, the plaintiff rnight not have corne into existence at dl. The certainty of genetic impairment is no Longer a mystery. In addition, a reverent appreciation of Iife compels recognition that plaintiff, however impaired she may be, has corne into existence as a Living person with certain rights?

The 'but for' test, if it is required at ail in a 'wrongful life' case, need only take us as far as is necessary to show that the defendant's negligence was a necessary or 'legai' cause of the child's birth with congenital disease. The fact that she never had the chance to be boni healthy or free from disease ought to be irrelevant to the question of defining the child's injury provided that it can be shown that her birth with disabilities could have been avoided 'but for' the defendant's wrong. Once the case goes to trial, the plaintiff would be required to show, as a matter of proof, that if her parents had ken properly advised of the risk of congenitai disease in their future child, they would have avoided her conception and/ or bi~th.'"~However, this is an evidentiary issue that does not go to the question of the vaiidity of the cause of action under a motion to dismiss.

However, the Courts seem to be under a further misopprehension in analysing the child's daim in a 'wrongful Life' action, namely, that the negligent failure to advise of the material risks of disease cannot be a necessary or 'legal' cause of the disease, if it in fact eventuates. This goes to the acti omission distinction in tort law, which incidentally is often confused with the distinction between misfeasance and nonfeasance.'?' Whatever otherwise wrongful

475 Curlender. supra note 9 at 488. 476 See further betow at notes 486ff. & accompanying text, 477 The act/ omission distinction has at any rate been criticised as being difficult to make as the Iines are sometimes blurred: Fleming, supra note 50 at 163: 'What superfÏcialIy looks like non-feasance is often, upon corrccr analysis, a case of misfeasance.". Pursuant to the misfeasancd nonfeasance distinction, a defendant will conduct the misfeasance/ nonfeasance distinction excludes from ~iabilit~~'~it does not exclude the negligent failure to take reasonable precautions that creates an unreasonabie nsk of injury from befaliing another, that in fact event~ates.~'~Obviously, a more serious restraint on individual liber~yis involved to require a defendant to take positive steps to advise of the risks of injury than it is to place limits on her &dom to act.- However, where there is an additional element of proximity between the parties, such as assumption of responsibility and reliance, the law is apparentiy far less loath treating omissions any differently from positive acts of misfeaunce."'

A useful analogy can be made here with medical mdpractice cases involving a failure to inform of matenal risks attendant in a proposed medical procedure. In terms of causation, there is apparently no signifkant difference between the failure to inform of a material risk that a child will be born disabled and the failure to inform of a material risk of injury inherent in a proposed medical procedure. In either case, if the defendant assumes responsibility for the information provided and the patient relies on this in choosing to continue with the prepancy or to undergo the proposed treatrnent, as the case may be, and the risk materialises, the defendant is liable for the harm that results. In this way, liability in both 'wronm@hl life' and 'wron,oful birth' cases, where applicable, cm be viewed in the same way

only be legal1y responsible for the wrongful infliction of harm (misfeasance), not for the mere failure to prevent harm (nonfeasance): E.g. Ernest J. Weinrib, The idea of Private Law (Cambridge: Harvard University Press, 1995) at 153: Ernest J. Weinrib, Ton Law: Cases & Materials. supra note 459 at 487; Peter Benson. The Bais for Excluding Liability for Economic Loss in Tort Law" in David G,Owen, ed., Phifasophical Foundarions of Tort Law (Oxford: Clarendon Press, 1995) 427 at 448. For the questionable distinction between 'kiiling* and 'letting die', see further, infra note 572- The obvious example is the rule chat there is no '': Ernest J. Weinnb, Ton Law: Cases & Materials, supra note 459 at c. 1; John G. Fleming, supra note 50 at 164ff. However, it is difficult to undersand the misfeasance/ nonfeasance distinction in tort law other than as a mere description, which is sometimes used to distinguish between those cases in which IiabiIity attaches and those cases in which it does not. To this extent, the distinction seems tautological and unhelpful. 479 E.g. A- Ripstein, Equalig, Responsibility. and the Law (Cambridge: Cambridge University Press, 1999) at 9 1: John G.Fleming, supra note 50 at 162-63. JSO Fleming, ibid. at 163. .LS 1 E-g. Fleming, ibid. at 166-68. See further supra note 434. as liability resul ting from any negligent misrepresentation, particularly for a failure to wam of a rkk of injury inherent in a proposed medical procedure.=

in Rogers v. Whirakrr, the Ausualian High Court unanimously affmed an order of the trial judge awarding damages to a woman who became almost totally blind after undergohg eye surgery? The woman developed a condition known as sympathetic ophthairnia causing her to Iose vision in her good eye as a result of surgery that was meant to help restore vision to her damaged eye. The issue before the COU^ on appeal was the appropnate required in cases involving a lack of informed consentgm However, the decision of the trial court holding the defendant eye surgeon liable was affirmed not because he negligently perforrned the surgery, but because he failed to disclose the approximately 1 in 14,000 nsk as a result of the surgery of the plaintiff developing the condition in her good eye. The fact that the darnage to the plaintiff's good eye was caused by the non-wronghil conduct of the defendant, namely the nsk of the condition developing from the surgery, did not absolve the surgeon of liabiiity for wrongfuliy failing to disclose the risk."

E.g. Fieming observed that "negligence in word was recognised as a source of liabifityfor physical injury long bcfore its more belated admission in cases of economic ioss, and that the conditions for recovery are much more libenl in the first instance than in the second,": Ibid. at 192. 483 Rogers v. Whiraker ( 1992) 1 75 CLR 479 (H.C. Aus). 434 The High Court rejected the contention that the level of information required to be disclosed could be determined by reference to the medical profession alone, as is the situation in England: /bid- at 489. Different jurisdictions require the satisfaction of different tests to pmve causarion in %ck of inforrned consent' cases: E.g. Canada: Arndt v. Smitt~,supra note 37 1; (affirming Reibl v. Hughes (1 980) 14 CCLT 1 (S,C.C.)(the 'modified objective test': whether a reasonable person having the piôintiffs characteristics would have chosen to terminate the pregnancy); Austral ia: Rogers v. Whiraker, supra note 483 (suggests modi fied objective test in obirer): Ellis v. Wallsend District Hospiral (1989) 17 N.S.W.L,R. 553 (suggests a subjective test); England: Bolam v. Friern HMC [ 19571 2 Ali ER 1 18; Sidaway v. Berhlem Royal Hosp Govn [ 19851 1 Al1 ER 643 (H.L.) (subjective test); New Zeaiand: Smith v. Auckland Hosp Bd [1965] NZLR 19 1 (N-ZC-A.); America: Canrerbuc v. Spence, 464 Md 772,791 (DCCir 1972). See further Giesen. supra note SI0 at 9 26 paras 670ff. The question of the appropriate test for causation in the 'lack of informed consent' cases is controversiaI with the subjective test king cnticised as depending too much on the plaintiff's hindsight and the objective test as producine a formidabIe obstacle for an injured plaintiff to overcome: See generally, Mark Crowe. "Confusion Over Causation: A Journey Through Arndt v. Smith" (1998) 7 Health Law Review 3 (criticising the 'modified objective test' in Canada); C.B. Robertson, "Informed Consent Ten Years Latcr: The Impact of Reibl v. Hughes" (1991) 70 Can. Bar Rev. 423 at 428-29 (The author finds informed consent cases fail in 82% of cases); John Devereux, "It's Just a Jump to the Left - and then a Step to the Right: Developments post Rogers v. Whitaker in the Law Relating to Failure by a Medical Practitioner to Advise of Risks" 17: 1 ( 1998) U. Tas. L. Rev.63 at 72. In Arndt v. Smith, the issue arose directly for decision by the Supreme Court of Canada as to whether the financial loss claimed by the plaintiff in a 'wrongfd birth' action was caused by the doctor's failure to advise of the risks of the child being bom with chicken po~.qMThe Canadian Supreme Court had recently endorsed a subjective test of causation in an action against a manufacturer for breast implants when detennining whether the failure to warn of the risks associated with the implants caused the hmcomplained ofmm However. the majority affmed the continuation of the 'modif~edobjective test' estabiished 17 yean earlier in Reibl v. Hughes for 'lack of informed consent' cases involving medical negligence? Applying that test to the case at hand, the majority concluded that the triai judge was correct to conclude on the evidence that a reasonable person in the plaintiff's position ivould not have tenninated the pregnancy if informed of the srnail risk of birth defects from exposure to chicken

In Anglo-Canadian and Australian 'failure to warn' cases, therefore, it is not the infringement of the right to choose a particular course of treatment that is compensabIe per se. These Courts have rejected the notion that the failure to advise of material Rsks inherent in the proposed treatment negatives the patient's consent making it a or other intentionai tort?' Uniess there has been intentional rnisrepresentation or fraud to secure the patient's consent, a failure to disclose attendant risks, however serious, goes to negligence not to the person!" Accordingly, the 'cornpensable loss' or injury is the foreseeable and

Supra note 37 1. 4m Hoflis v. Dow Corning Corp., CI9951 4 S.C.R. 634, 129 D.L.R. (4") 609. J88 Arndr v. Smith, supra note 37 1 at 57.

~9 Ibid. at 58. McLachlin IVconcumng with the result of the majority, held the proper test, which the trial judge had duly applied, was whether the particular patient would probably, in al1 the circumstances. have chosen to terrninate the pregnancy (subjective test). Sopinka & lacobucci JJ dissenting hcid, the proper test was as stated by MacLachlin J, but the uial judge had not duly applied it because he failed to give proper weight to the patient's testimony, The rïsk of the child king born disabled frorn her rnother's exposure to chicken pox was assessed at 2.3%. Affirming the appropriate test of causation in 'wrongful birth' cases, see further: Bfake v. Cruz, supra note 10, Eisbrenner v. Stanley, 106 Mich. App. 357,308 N.W. 2d 209 (198 1); Dumer v. Sr- Michael's Hospiral, supra note 257.

''O E.g. Rogers v. Whiruker, supm note 483 at 490: Arndr v. Smith. supra note 37 1 at 7 1 ('The issue is not the plaintiff s right to choose, as it would be for the tort of battery or an action for fraud, but whether as a factual matter the negligent act caused the loss."). But see further discussion infra at notes 757ff. & accompanying text. 49 1 Ibid. proximate hmthat flows when the plaintiff relies on the negligent advice of the defendant in adopting one course of action rather than another and not the infnngement of the right to decide per se. Another way of putting this might be that it is not the lost opportunity or chance to follow a particular course of treatment that is actionable, but the injury or hm that results when the plaintiff relies on the defendant's wrong@ùl advice?

Similarly, in 'wrongfbl birth', and for that matter, a 'won@ conception' action, it is not the deprivation of the right to decide whether to avoid the child's conception or birth that is cornpensable, but the foreseeable and proximate consequences that flow fiom the detrimentai reliance on the negligent misrepresentation. Accordingiy, in a 'wronbofiil buth' action, for example, the 'injury' is often charactensed by the Courts as sirnply the financial and other consequences to the parents of having a disabled ~hild.*~~In this respect, it is interesting to note that the English Court of Apped recently recognised that the birth of a healthy child could constitute 'persona1 injury' to the parents for the purposes of falling within the coverage of the applicable statute of limitations?

In a 'wron~~llife' case, by analogy, it is not the lost opportuniry not to be born of which the plaintiff cornplains, but the foreseeable consequences of a failure to inform the plaintiff's parents of the risk of king bom with congeniral disease19' This view was argued for by Justice Larsen, in his dissent in Ellis v. Sherman, where he forcefully rebutted the majonty's daim that the child's neurofibromatosis was not a legal injury because it was not caused by

491 Note, however, that this approach to the 'lack of informed consent' cases has been criticised as making damagcs disproportionate to Iiability: E-g. Richard L. Abel, "A Critique of Torts" (1994) 2 Tort L Rev. 99 at 101. 493 E-g. Keel v. Banach 624 So. 2d IO22 (Ala. 1993); Bhke v. Cruz, supra note 10: Naccash v. Burger, supra note 9; Harbeson v. Parke-Davis, supra note 2; Smith v. Core, supra note 10 at 347. But cf. Carrison v. Medical Cenrer of Delaware DeLSupr., supra note 14 where the parents' injury in a 'wrongful birth' action was defincd as the deprivation of the right to make an informed decision as to whether to continue or terminate the pregnancy. 494 Uralkin v. Manchester HA, supra no te 369 (The Court held the 'persona1 injury*was the impainnent of the morher's physical condirion as a result of the unwanted pregnancy). Accordingly. in currently accepted legal principle, it is unlikely that the child's injury in a 'wrongful life' action could be characterised as the lost opportuniry of non-e-ristence, analogous to the 'loss of chance' cases, as to which see furtfier infra note 760. the defendant's failure to advise of the nsk of di~ease.~%He said that the child in the case was not clairning that the doctors caused the disease. Rather, his cause of action was based on the doctors negligence in failing to ùiform his parents that there was a hi& probability that any child they had would suffer from neurofibromatosis, and his resulting iife burdened with suffenng and the need for medical and other assistance. He concluded that "[wlhere a child experiences suf5ering and financial expense as a result of another's negligence, that suffenng and expense should be recompensed?

Similady, Justice Handler, dissenting in Procmik v. CilIo, said that the infant's injury in a 'wrongfbl life' action need not be defined as king born defective or require that nonexistence be preferred to existence. Rather, his injury consists of the consequences of the deprivation of his parents' right to detennine on his behaif whether he should have been b01-n.~~'Justice Handler concluded, "What then is at issue as the basis for a cause of action is not the postulate that nonlife is prefenble to life, but only whether parents - for themselves and their child as a family - were deprived of the opportunity to make the fateful decision and enact their preference of one over the other. 9, .199

The Supreme Court of Washington in Harbeson, in applying the 'but for' test of factual causation to a 'wrone@Ùl life' daim aIso concluded that, "were it not for the negiigence of the physicians, the minor plaintiffs would not have been born, and would consequently not have suffered fetal hydantoin syndrome. 9, .500 More particularly, the Court concluded that 'but for' the defendant's negligence, "the plaintiffs wouId not have incurred the extraordinaqy expenses resulting from that condition" and that "[tlhere appears to be no reason a finder of fact could not find that the physicians' negligence was a proximate cause of the plaintiffs' injuries.77 .501

4% Ellis v. Sherman, supra note 17 at 1330-33 1.

497 Ibid. 498 Procanik v. Ciilo, supra note 10 at 769, 499 lbid. -90 Harbesori, supra note 2 at 497. Ibid. Accordingly, by characterishg the child's injury in a 'wronghl Me' action as her birth with congenital disease and by adopting a 'cornmon sense' approach to causation, it is not necessary to be pre-occupied with the rnetaphysicai conundmms posed by the 'but for' test of causation. The medical rnalpractice cases involving a Yack of infonned consent', and in particular 'wrongful birth' cases, provide a suitable framework within which to analyse 'wrongful life' actions, where there has been a fdure to disclose materid risks.

3.4 The Assessrnent of Damages in 'Wrongful life' Actions: The Compensatory Principle of Tort Law (Resrihctio In Infepm)& Remoteness of Damage

"The life of the law has not been logic: it has been expenence. 9,502

A major legd obstacle to allowing 'wrongfbl life' actions is perceived to be the traditional principle for assessing damages in tort law which requires, so far as money can do, placing the plaintiff in the position she would have enjoyed had the wrong not occurred, or restitutio in integrrim.503 Applying this principle literally to a 'wron@l life' actions would require a comparison between the child's impaired lije with the condition she would have been in had the wrong not occurred, namely non-exisrence. Such a comparison, the Courts say, they cannot make. This is either because they are not prepared to declare that life, however impaired, cm ever be worse than never having been bom so as to amount to a legal injury or because such a comparison is simply beyond the abili~of a judge or jury to make.

Tn respect of the first of these related propositions, it was argued in the previous section that the injury in a 'wrongful life' action could be characterised without reference to the fact that 'but for' the wrong, the child would not have existed. However, even assuming that it were

502 Oliver Wendall Holrnes Jr., The Cornrnon Law Lecture 1 (188 1) cited in Renslow, supra note 72 at 1264. -w3 This principle is "fundamental to the whole system of tort compensation": Cooper-Stephenson, supra note 469 at 790, 109Çf. E-g. Livingsrone v. Rawyards Coal Co. (1 880). 5 App. Cas25 at 199-2 1 1 per Lord Blackburn. In Canada, the principle has ken modified so as to ailow full compensation for pecuniary loss and damages which are ''fair and reasonabte" with respect CO non-pecuniary darnages, which 'do not lend themselves to mathematical calculation": Andrews v. Grand & Toy Atbena Ld., (1978), 83 D.L.R. (3d) 452 (S.C.C.). See also H Luntz, 'The Purpose of Damages in Ton Law" in P. Finn, ed., Essays on Tom(Sydney: The Law Book Co., 1989) at 243-46.260-62. necessary to characterise the child's hmin a 'wrongful Me' action as behg bom, it WUbe argued in the following section that an impaired Me can conceivably be worse than not having been born so as to constitute legal injury.

This section will address the second of the above objections to 'wronboful life' actions, narnely, the proposition that the task of assessing damages in a 'wrongful life' action is "logically impossible",^ "entirely too metaphysicalTT , 505 or %eyond mortals, whether judges or jurors 97 .506 The vast majority of Courts that have rejected the action have done so on this ground, if also on othe~.~In denying the child's daim for general damages in Turpin v. Sortini, for example, the California Supreme Court said that unlike ordinary pre- natal injury cases where jurors could rely on their own experience of a normal life without pain and suffering as a frarne of reference in the assessment of damages, in a 'wrongful Life' case, "that simply is not the case, for what the plaintiff has 'lost' is not life without pain and suffenng but rather the unknowable statu of never having ken born. 99 .SOS

However, difficulty in the assessment of damages is not and never has been a valid legal justification for denying re~overy.~The American Supreme COU^ recognised this long ago when it concluded that "it would be a perversion of fundamental principles of justice to deny

Gleirntan. supra note 10 at 692 per Pra'tor J.

'O5 Linirtger. supra note 9 at 12 10. 506 Harbesorr v. Parke-Davis, supra note 2 at 496. -507 E-g. Speck v. Finegoid. supra note 17 at 1329-30; Becker v- Schwam, supra noce 1 I at 8 12; Alquijay, supra note 14 at 246; Turpin. supra note 9 at 963-64 (in relation to generd damages)("A ntionai, nonspeculative asscssrnent of damages is outside the realm of human competence"); Blake v. Cniz, supra note 10 at 322; Goldberg v. Ruskin, supra note 9 at 409 ("the point to be made here is not that the calculation of damages for the asserted tort wouid be merely difficult, but nther that the task would be meaningless and impossible."); McKay, supra note 10 (Per Stephenson LJ. at 1 18 1-1 182: "if difficulty in assessing damages is a bad reason for refusing the task, impossibility of assessing them is a good one,"; Per Ackner LJ. at 1189: Per Griffiths LJ. at 1 192-93: 'To my mind, the most compelling reason to reject this cause of action is the intolerable and insoluble problem it would create in the assessment of damage"); Jones v, Rosrvig, supra note 398: Banneman v. Mills, supra note 409 at 68,663; Friedman v. Glicksman, supra note 35 at 1142-43. -20s fiirpili. supra note 9 at 964. Justice Mosk, however, dissenting, criticised the majority decision saying that "[aln order is internaliy inconsistent which permits a child to recover special damages for a so-called wrongful life action, but denies al1 genenl damages for the very same tor~":Ibid. at 966. While he commended the "modest compassion of the majority", he concludcd "they suggest no principle of law that justifies so neatly circurnscribing the nature of damages suffered as a result of a defendant's negligence.": Ibid- Grubb. .'Wronpful Life and Pre-Natal Injury" 1 Med. Law Rev. (1993) 261 nt 264. al1 relief to the injured person" on the ground that the tort was of such a nature as to preclude the ascertainment of damages with ~ertaint~.''?~'Judges and juries commonly make difiicult assessments of damages that are not thernselves susceptible to precise mathematical calculation, such as damages forpain and sufiering and loss of expectation of life. Even Lord Stephenson, in McKay, observed, in this respect, that "judges have to pluck figures from the air in putting many imponderables into pounds and pence7, .511 Furthemore, difficulty in the assessment of damages has not prevented Amencan Cowts from allowing 'wrongful death' actions, even though an assessment of the value of Life prematurely cut short is required to establish that the deceased was hanned b y her premature death?12

In Gkimran, Justice Jacobs, dissenting, rejected the majorityTs argument that it would be impossible to assess the child's damages.'13 He said that the plaintiff in a 'wrongfid life' action was claiming damages for her emotional distress and the "readily measurable rnedical and maintenance expenses causally related to the abnormality'T -514 He said, "[s]urely a judicial system engaged daily in evaluating such matters as pain and suffering, which admittedly have 'no known dimensions, mathematical or financial' ... should be able to evaluate the hann which proximately resulted from the breach of duty. ,T .515 in any event, "even if there were more evahation complexities than are tnily present here, they would not furnish any sound basis for the total denial of rec~ver~.".~~~

Many of the Courts that have rejected the 'wrongful life' cause of action on the ground that damages are incapable of rational assessment have also said that they would not let Logic

510 Sroy Parchmenr Co. v. Parerson Parchmenr Paper Co.. 282 US. 555 at 563 (1933). See also Justice Handler's partial dissent in Procanik v. Cillo, supra note 10 at 770: Smith v. Core. supra note 10 at 347-48. 511 McKay, supra note 10 at 1 192-93. 512 E-g. Capron, supra note 27 at 649. See generally, Mark Suasser, supra note 23 1 at 68-69. Gleirn~an,supra note 10 at 704. Ibid. Ibid. at 704-705. Ibid. stand in the way of justice. For example, in Procanik v. ~illo~"in ailowing recovery of extraordinary damages for the child plaintiff, the New Jersey Supreme Court said,

Law is more than an exercise in logic, and logicai analysis, although essential to a system of ordered justice, should not become a[n] instrument of injustice. Whatever logic inheres in pennitting parents to recover for the cost of extraordinary medical care incurred by a birthdefective child, but in denying the child's own right to recover those expenses, must yield to the injustices of that result. The right to recover the often crushing burden of extraordinary expenses visited by an act of medicd malpractice shouId not depend on the 'wholly fortuitous circumstance of whether the parents are available to suer .518

Yet in denying the child's claim for general damages, the New Jersey Supreme Court did so precisely because of the "essentially irrationai and unpredictable nature" of the ~lairn.~~~The Court said that, "[tlhe crux of the problem is that there is no rational way to measure non- existence or to compare non-existence with the pain and suffering of his impaired existence" and that "[a]lthough damages in a personal injury action need aot be calculated with mathematical precision, they require at their base some rnodicurn of rationafity.rr .520

However, no-body believes that a monetary award of damages would ever tmly place the plaintiff in a personal injury action in the position she would have enjoyed had the injury not occurred."' This is particularly so with respect to an award of pnerai damages for pain and s~fferin~."~By bringing a 'wrongful life7 action, the plaintiff is not asking the Coun to perform some miracle in reversing the chah of events that resulted in her birth with, for example, Tay-Sachs disease.

Ibid. at 759. Ibid. at 762. See also McKuy, supra note 10 per Stephenson U at 1184. 519 Ibid. at 763. sx Ibid. [Emphasis added]. 52 l E-g. Allan Hanson, ''Sui& for Wrongful Life, Counterfactuals, and the Non-Existence Problem" 5 [1996] S. Cal. Interdis. L.J. 1 ai 16. PI Some commentators suggest that a corrective justice theory of tort law is inconsistent with providing full compensation for non-pecuniary loss, notwitbstanding that such losses have been caused by the defendant's What the child wants is to be compensated, to the extent that money can do, for her life of suffering and perhaps aiso to deter the defendant and others from future carelessness that could result in another unfortunate chiid from bearing the same fate that befell the piaintiff. Compensation is after dl, dong with deterrence, a wellestablished purpose of ton law? Accordingly, L1 the context of 'wrongful life' actions, Clarke CJ., dissenting in Goidberg v. Ruskin. arped that the imposition of liability in 'wrongful Me' cases "would further the usual purposes of tort law" referring to the "allocation of risk, compensation and deterrence, TT. 524

Hypothetical inquiries as to what the plaintiff has 'lost' by king born with disabilities as opposed to never having been born are largely unhelpfül. In te- of the assessrnent of damages, Justice Handler dissenting in Procanik v. Cillo concluded that "what confronts the Court is not divining a standard by which one can know whether nonexistence is to be preferred over existence. It is, rather, identifying the damages that flow from denial of parental choice. TT .su Similarly, in Goldberg v. Ruskin, Chief Justice Clark dissenting claimed, "[tlhis court has no duty to decide philosophical issues. It has a duty to decide cases. 7- .526

Another dissenting opinion in Speck v. Finegold agreed that the issue in the case was not whether public policy favoured birth over abortion, but whether one injured by the negligence of another is entitled to recover for the hami proximately caused? Justice Kauffman acknowledged that the remedy nonnally afforded to a party injured by the negligence of another is to be placed in the position she would have held but for the wrong in

wrong: E-g. Bruce Chapman, "Wrongdoing, Wetfare, and Damages: Recovery for Non-Pecuniary Loss in Corrective Justice" in Philosophicai Fouridarions of Ton Law. supra note 477 at 409, 93 E.g. See genenlly, Cooper-Stephenson, supra note 469 at 1 14; Capron, supra note 27 at 657-58,682- Howcver, proponents of a corrective justice iheory of ton law deny the normative significance of these 'extrinsic goals' of tort Iaw: E-g. Ernest, I. Weinrib, The Idea of Privare Lnw, supra note 477 at 5ff. 522 Goldberg v. Ruskin. supra note 9 at 412. See also D. Giesen, supra note 2 10 at 9 19 para 479. 525 Procanik v. Cillo, supra note 10 at 769. Goldberg v. Ruskin, supra note 9 at 410. m Speck v. Firregold, supra note 1 7 at 1 17, Per Kauffman J. which case Francine Speck would not have ken bom? However, he said that there was no need for the Court to "indulge in metaphysical abstraction^".^ He rejected the proposition that the law is so rigid and inflexible that, to recognise a cause of action here, we must recognise that Francine would have ken better off had she never been born. The reaiity is that Francine exists and her existence is foreseeably and inextricably coupled with a painful and disfiguring disease?

Perhaps the real concem underlying the objection to 'wrongfui life' actions based on difficulty in the assessrnent of damages is the understandable reluctance to hold the physician liable for the plaintiff s very existence in addition to her disabdiries. In Palsgraf v. Long Island RR, the injuries to the plaintiff who was hit by falling scaies as a result of an explosion when a passenger who was negligentiy pushed ont0 a rnoving train dropped a parcel containing fireworks were too rem~te.~'In other words, there was no connection between the risk created by the defendants' wrongdoing in pushing the passenger ont0 the moving train and the plaintiff s inj~ry.~'

There are good arguments for restricting the plaintiffs damages in 'wronahl life' actions to the losses caused by the congenital disubilis., rather than the child's existence. The darnages from the child's affliction with Say, Tay Sachs disease, properly fail within the scope of the nsk created by the defendant's negligent failure to advise of the risk of the child's birth with congenital disease. This is because the harrn, which the child's parents sought to avoid by

SfS Jbid. at 1 18. (&id. no Jbid. at n.3. Palsgraf v. Long Island Railroad, 162 N.E. 99 (N.Y.C.A., 1928)[hereinafter Palsgrafl. Sec also Pmsser. "Palsgraf Revisited", supra note 124. n2 See generally. Arthur Ripstein, supra note 479 at 67-68. See also Overseas Tankship (UK) v. Mons Kock & Engineering (The Wagon Mound. No.1) [1%1] AC 388 (P.C.))("For it does not seem consonant with current ideas of justice or monlity that, for an act of negligence, however slight or veniai, which results in some trivial foresecable damage. the actor should be liable for al1 consequences, however unforeseeable and however grave, so long as they can be said to be 'direct.'."). But cf: Hughes v. Lord Advocate [t 9631 AC 837 (H-L.)(need only foresee gened nature of damage) & Overseas Tankship (UK) v. Morts Dock & Engineering (The Wagon hforrnd No.2) (19661 2 Al1 ER 709 (P.C.)(A 'possibility' or 'real tisk' of damage is sufficient). engaging the prenatai genetic advice of the defendant, was the birth of a congenitaliy disabled child and not the birth of a heaithy ~bild.~~

The approach of Anglo-Amencan courts to the assessment of damages in 'wrongful birth' and 'wrona@bl conception' cases, aithough not necessarily consistent or well articulated, supports this approach to the assessment of damages in 'wroagfûl Iife' cases. Anglo- American Courts have ahost universaily awarded damages in 'wronboful birth' cases for the extraordinary medical and other costs of caring for a disabled chiid. Costs of raising a healthy child are rarely, if ever, claimed by the plaintiffs in a 'wrongful birth' action and neither are they said to be Iogicdy required by the Courts, notwithstanding that 'but for' the defendant's nepiigence, the child would nor have been born.= Accordingly, damages for the ordinary expenses of raising a child, over and above those incurred from the child's congenitai disability, lie where they fall with the child's farnily, who would have had to incur them in any event upon the birth of a healthy child.

By contrat, in a 'wrongful conception' case, although there is no consistent approach,53s one Iine of cases at Ieast, allows parents to be compensated for child-rearing costs, where it was

su Recovery for the ordinary cosrs of child-rearing in a Wrongful birth* case would arguably constitute a diferenr cpe of ham from that sought to be avoided by seeking the defendant's advice. See further infra note 538 & accompanying text,

'3.1 But Cf: Robak v. United States, supra note 256 (allowing al1 expenses incident to the care of the child, without discounting for expenses of child rearing not due to the disability). Note thar there is also some uncertainty as to the extent to which traditionai tort principles requinng plaintiffs to take reasonable steps to mirigate damages arc to be applied to 'wrongful birth' actions. For exarnple, it has sometimes been claimed that thcre is a duty on the parents to put the child up for adoption in order to reduce damages, which argument has mostly been rejected: E-g. Azolino v. Dingfelder, supra note 259 at 534.

535 Thcre are 3 main approaches to the assessrnent of damages in 'wrongful conception*cases. (1) The rotal recoveiy approach is discussed, infra note 536. (2)The of-ser/benefirs approach, adopted by some American courts, would permit recovery for the economic costs of raising the child in addition to the costs associated with the binh, but would reduce recoverable damages against the benefirs that the birth of a child would normaily bring to its parents: E.g. Troppi v- Scat$ supra note 4; Sherlock v. Sfillwater Chic, 260 N.W.2d 169 at 1 70 (Minn. 1977); Ochs v. Borrelli, 187 Conn. 253,445 A.2d 883 (Conn. 1982); Harrke v. McKelway, 707 E2d 1544, 155 1-52 (D.C. Circ. 1983); Burke v. Rivo, 406 Mass. 764,55 1 N.E.2d 1 (Mass. Sup Jud CL, 1990). See also Thake v. Maurice, supra note 369. (3) The limired damages approach, adopted by a substantial number of American courts, would pennit recovery for the unplanned pregnancy and birth of the child, but not for the costs of raising the child: See generally Kennedy & Grubb, supra note 4 1 at 991fE This is dso the approach adopted in some of the Canadian and Austrdian cases: E-g. Kealey v. Berezowski, supra note 37 1 (Damages for failed sterilisation. pregnancy, labour and delivery allowed only): Cherry v. Borsman (1992) 94 D.L.R. (4") 487 the birth of a healthy child that they sought to avoid by engaging the services of the defendant physician.n" Accordhgly, in Emeh, where a child born as a result of a negligently performed sterilisation procedure happened to be disabled, the parents could recover the costs incurred as a result of the chiid's disabilities in addition to damages for the ordinary cos& of raising the child? Mr. and Mrs. Emeh sought to avoid the birth of any child and the fact that the child bom as a result of the defendant's negligence happened to be disabled was mereiy fortuitous. In this way, Emeh is merely an application of the principle that a defendant must take his victim as hefinds him or the 'egg sheil skul17 rule?

Justice Lax examined îhis approach to the assessrnent of darnages in 'wrongful conception' cases in the Canadian case of Kealey v. ~erezowski.~'She considered that the claim for child-rearing costs was analogous to a clah for pure econornic loss in that its "essential character and purpose is to redress injury to an economic interest."? The Court's function in the assessrnent of damages in 'wrongfid conception' cases was to fmd the interest that the proposed procedure would have protected in order to determine whether the consequences of a faiied sterilisation constituted a genuine injury or a "blessed event7'."' The reasons for the procedure may be relevant to this inqujr such that if the reason was to avoid the birth of a

(BC CA):CES v Superclinics (Australicr) Pzy Lrd. supra note 37 1 (damages for negligent advise resulting in loss of opportunity to lawfully terminate pregnancy limited to damage flowing from advice). This is the total recovery approacii, which is the dominant approach in England, and allows recovery for the cos& of raising the child in addition to the pecuniary and non-pecuniary costs associatcd with the pregnancy and birth: E.g. Enieh, supra note 369; Allen v. BCoomsbury HA. supra note 369. A small number of American jurisdic tions have also adopted this position: E-g. Cusrodio v. Bauer, supra note 4; Stifls v. Granon, 55 Cal.App.3d 698, 127 Cal. Rptr. 652 (1976); i~velaceMedical Cenrer v. Mendez, 803 P.2d 603 (N-M- Sup. Ct.. II). 537 Enteh. supra note 369. Although it is not entirely clear from the case, there is no suggestion that the child's contenital disabiiity was directly caused, in a scientific sense, by the failed sterilisation procedure. 538 E.g. Fleming, supra note 50 at 234 ff.; Allen M-Linden, Canadian TonLaw (4* ed.) (Butterworths: Toronto, 1988) at 326ff; Ripstein, supra note 479 at 89: "But if unusual types of injury do not create liability, unusual extent of injury does.". a9 Kealey v. Berezowski, supra note 37 1 at 724ff.

~0 Ibid. at 732. This was also the view of Kennedy & Grubb, supra note 41 at 986-88. Scc also the judgerncnt of Brooke J. in Allen v. Bloomrbury HA, supra note 369; Lovelace Medical Cenrer v. Mentiez (199 1) 803 P.2d 603 (NM Sup. Ct): Bartok v. Shokeir, supra note 370, al 1 ciassifying the claim for chi Id-rearing cos& in a 'wrongful conception' case as a claim for 'pure economic loss'. 541 Ibid. at 739. healthy child, damages might properly be awarded for the expenses of raising the ct~ild?~ The notion that the reasons for seeking the sterilisation or abortion might be relevant to the assessment of damages appears to be the basis on which many of the 'wrongful conception' cases have been decided, whether explicitly or implicitly.su

If the hypothetical non-injured state is not a useful reference point from which to assess the child's darnages in a 'wrongful life' action, then the obvious thing to do would be to discard it in favour of a more suitable standard. We have seen that this is precisely what the Courts have done in assessing damages in 'wronboful birth' actions where the yardstick of a healthy life was used. In Smirlz v. Cote, the Supreme Court of New Hampshire awarded darnages to the parents for the extraordinary costs of rearing the disabled child? Unlike most courts that have awarded extraordinary costs in 'wrongful birth' actions, the Court in this case acknowledged that the 'extraordinary costs' rule was a departure from traditional tort principles, however that it was neither illogical nor unprecedented. The Court noted that the rule represents an application of the expectancy rule of damages employed in breach of cases.

As parents in a wrongful birth action typicaily desire a heaithy child and that is what they expected, until their expectations were frustrated by the defendants negligence, this nile merely attempts to put the plaintiff s in the position they expected to be in had the defendant not been negligent. Under this analysis, normal child-rearing costs were analogous to the price the piaintifFs were willing to pay in order to achieve the expected result. The Court observed that expectancy damages have been recovered in other ma contexts, for example,

542 fbid Lax J. resuicted damages in the case at hand to the costs associated with the prepancy and binh of the child. the re-sterilisation procedure and loss of income (but not for child-rearing costs) because the reason the ptaintiff sought sterilisation was not dire economic circurnstances: ibid- However, the general approach of Anglo-Amencan courts to the asessrnent of dofages in 'wrongful conception' and 'wrongful birth' needs funher analysis and clarification. See generally, Mark Smser, "Misconceptions and Wrongful Births: A Cal1 for a Principled Jurisprudence" (1999) 3 1 Ariz. St. LJ. 16 1. Smith v. Core, supra note 1 0 at 349. for nepligent mi~re~resentation.~~Keiley argues that the 'expectancy' measure of damages ought to apply to 'wrongfd Life' actions as well as 'wrona@Ûl birth' actions?

Judges and lawyers have shown that they are capable of using ingenuity in devising alternative approaches to assessiag damages in 'wrongful life' actions. Accordingly, Justice Bistline, dissenting in Blake v. Cruz, said that "as with other injured penons who cwot be restored to physical and mental normdity, [the plaintiffi should be entitied to general damages which adequately compensate her, and to specid damages as weli" on the basis of a cornparison "between a nom1 life and an impaireci Me. '* .547 Counsel for the plaintüf in McKay argued, albeit unsuccessfully, that to deal with the fact that the origin of the child's claim was the rubelia ùifection rather than the defendant's negiïgence, the Court could aUow the defendant a discount on the arnount of damages.m However, in order to account for the fact that the plaintiff never had the chance to be bom 'hedthy' or 'whole', the California Supreme Court in Curlender restrïcted the child's damages to recovery for the pain and suffenng, and any special pecuniary losses incurred, dunng her limired life.Y9

Some American Courts have also suggested that the benefirs of life to the plaintiff could be

offset against the burdens or hardships of an impaired life in the assessrnent of damages.550 This method of assessing damages is also one of the principal methods used by American

st6 Michael B. Kelley. The Rightful Position in 'Wrongful Life*Actions" (1991) 42 The Hastings LLJ. 505. 517 Blake v. Cnïz, supra note 10 at 324. This was also the approach of Judge Bar&, wirh whom Judge S. Levin agreed, in the seminal IsneIi 'wroogful life' case of Zeimv. which is further discussed infra at notes637ff. & accompanying text. 5UI McKay, supra note 10. 519 Crtrlender, supra note 9 at 489. This approach to the assessment of damages in 'wrongful Iife*ciairns was adopted by Justice Ben-Pont with whom Judge D. Levin agreed in Zeitzov, supra note 1. It is also arguably consistent with the approach of some Courts to limiting liability for negligence resulting in aggravation of a latent or pre-existing condition by allowing for the victim's reduced value owing to the disease: E-g. Wilson v. Peisley ( 1975) 50 ALJR 207 (defendant who precipitated fatal coronary occlusion in sufferer of artenal sclerosis Iiable for the dearh, but damages discounted on the basis of deceased's abnormally brief life expectancy). See also Fleming, supra note 50 at 225. 550 This approach to assessing damages in 'wrongful life' cases is advocated by Capron, supra note 27 at 659 n. 175. There is, however, some unccrtainty as to whether damages in 'wrongfui birth' actions should be reduced or offset by any emotional or other benefits accruing to the parents by reason of the Iife, love and courts to in the 'wrongful conception' cases so as to enswe that the plaintiff does not receive a windfall."' Accordingly, it is no more justifiable to reject general damages for 'wrongful life' on the basis of the "incalculable nature of both elements of this hm-benefit equation77 ,552 than it is to reject 'wrongful conception' cases because of difficulties in the hm-benefit approach to the assessrnent of damages. In this respect, the claim of the Court in Turpin, that an incident of the defendant's negligence was the "incalculable" gifi of life entailing the capacity to receive and give love and pleasure as well as to experience pain and suffering is ~~ecious.~~~

However, whatever the proper basis is for assessing the child's damages in a bwrongful life' action, the claimed 'logical impossibility' of assessing damages is not a legitimate basis for denying the child's claim. As we shail see, the refusai to reco,dse 'wronghil Me' actions because of the supposed 'logicai irnpossibility' of cornparhg irnpaired life with non- existence is, in the end, "more a matter of policy than of logic. ., .554

The proper approach to determining the validity of a clah for personai injuries in tort law arguably starts with the identification of the legal wrong and then works backwards through the principles of tort law to find the appropriate remedy. The famous statement of Blackstone quoted at the start of this Chapter to the effect that for every wrong there is a remedy recognises this. Yet, in stead of starting with the wrongfil conduct of the defendant physician in a 'wrongful life' case, the Courts have started with the cornpensatory pnnciple of tort law and the remedy. By deciding that a remedy is not available, the Courts have effectively subordinated the wrong to the remedy.

affection of the defective child. See also Justice Handler in Procanik v. Cao, mentioning sorne of these possiblc alternative methods of assessing damages for a 'wrongful lit'e' action at 771-772. 55 1 Sec further supra note note 535. 552 This was the conclusion of the Supreme Court of California in Turpin v. Sorrini, supra note 9 at 964.

553 Ibid. 5gCapron. supra note 27 at 648. 3.5 Legdy Cognisable Harm & States Worse than Non-Existence: An Analogy With the (Other) End of Life

To beyor not to be: that is the question: Whether 'tis nobler in the mind to suffer The slings and arrows of outrageous fortune, Or to take arms agaiast a sea of troubles, And by opposing end hem? To die: to sleep; No more; and by a sleep to Say we end The heart-ache and the thousand natural shocks That flesh is heir to, 'tis a consummation Devoutly to be wish'd. To die, to sleep. 555

While Harnlet's soliloquy contemplates "the dread of something after death that may make men "rather bear those ills we have" than commit suicide, he nevertheless acknowledges that death or non-existence might be something "devoutly to be wish'd" rather than to "suffer the slings and arrows of outrageous fortune". Yet, the most pervasive legai objection to the 'wrongful life' cause of action is the view that a disabled life could never be judged to be worse than non-existence so as to amount to a legai Accordingly, drawing from a different portion of the same Hamlet soliloquy quoted above, Ackner L.J. in Mc- responded to the rhetorical question, "how cm a court begin to evaluate non-existence, 'the undiscovered country from whose boum no traveller retums'?

555 W. Shakespeare. Harnler, Act III. scene 1.

556 E-g. Liriinger v. Eisenbauni, supra note 9 at 121q"We agree with the overwhelming majority of courts which have addressed the issue that a person's existence, however, haiidicapped it may be, does not constitute a IegalIy cognizable injury relative to non-existence" and "[tlo hold that Pierce .-.suffered a legally cognizable injury would be to hold, therefore, that one might properly conclude that Pierce's existence constitutes a deuimcnt to hirn; chat from his perspective, it would have been better had he not been born at dl."); Garrison v. Medical Cenrer, supra note 14 at 294 ("the question of whether it would have ken better for an impaired child to have never lived at al1 is a philosophical one not amenable to judiciai resolution."); Becker v. Shwam, supra note I 1 at 8 12 ("Whether it is better never to have been bom at al1 than to have ken born with even gross deficiencies is a mystery more properly to be Ieft to the philosophers and the theologians-"); Goldberg v. Ruskin, sripra note 9 at 409 ('The argument that the child was in some rneaningful sense harmed by king bon and would have been better off not having ken bom suggests that there is a perspective, apart from our life and world, from which one can stand and say that he finds nonexistence preferable to existence."); Creco v. Unired States, supra note 256 at 348 ("SureIy the law can assert no cornpetence to resolve the issue, particularly in view of the very nearly uniform high value which the law and mankind has placed on human Iife, rather than its absence."); Smith v. Cote, supra note 10 at 352 ('The courts of this State should not become involved in deciding whether a given person's Iife is or is not worthwhile."); Gleitmnn, supra note 10 at 693 ("A court cannot say what defects should prevent an embryo from king allowed life.") (Chief Justice Weintraub, said, "Man, who knows nothing of death or nothingness, cannot possibly know whether [the child would have been better off not to have been born]).": Ibid- at 7 1 1. by stating that "[nlo cornparison is possible and therefore no damage cm be established which a cous could recognise."? This, he said ''goes to the root of the whole [wron=@Ûi life] cause of action. .9 .558

It has been argued that it is not necessary to engage in metaphysical ruminations about non- existence in order to recognise the validity of the child's action for 'wrongful life' if the injury is viewed as the disabilities which flow from the negligent rnisrepresentation rather than the child's existence per se. However, even assuming that the childTs injury in a 'wrongful life' action is her birth, the proposition that an impaired Life could never be judged to be worse than non-existence and so does not constitute a legal injury is misconceived in a number of respects.

Firstly, the Courts in 'wrongful life' cases are effectively making a thinly veiled value judgement that assumes the absolute sanctiry of life rather than any pnnciple of For exarnple, the majority's decision in Berman v. Allan was essentially based on the view that "[ojne of the most deeply held beliefs of our society is that life whether experienced with or without major physical handicap is more precious than non-life.".5"0 The Court spoke at length about the sanctity of life being protected by the Amencan Constitution, the Declaration of Independence and the medical profession as 'the preservers of iife'."' Simiiarly, in Blake v. Cruz, the majority considered that "[tlo recognise wrongful life as a tort" would be c'cornpletely contradictory" to the belief "basic to Our culture" that "life is precious ,r .562

- '~7McKay, supra note IO at 1 189.

558 Ibid. See also the cornments of Stephenson LJ ai 1 18 1-82. 559 Eg. Capron, supra note 27 at 650: "In ruling in this fashion, courts are not announcing purely rational conclusions derivcd from legal principles, but are instead proclaiming their personal views on certain value- laden 'facrs' .". Berman v. Affan. supra note 1 1 at 12. 56 1 Ibid. at 12- 13. 562 Blcrke v. Crut. slipra note IO at 322. Other Courts, while not expressing a preference for iife over nonexistence, have nevertheiess rejected the 'wrongfui life' cause of action on the basis of the difficult moral and policy issues they raise. The New York Court of Appeals in Becker v. Schwartz observed, "[elven as a pure question of law, unencumbered by unresolved issues of fact, the weighing of the validity of a cause of action seeking compensation for the wronml causation of life itself cas& an almost Orweliian shadow, premised as it is upon concepts of genetic predictability once foreign to the evolutionary process. .563 The majority said, "[ijt borders on the absurdly obvious to observe that resolution of this question transcends the mechanical application of legal principles.". They concluded, "[alny such resolution, whatever it may be, must invariably be coloured by notions of public policy, the vaiidity of which remains, as always, a matter upon which reasonable men may disagree. 79 .564

Similarly, in Procanik v. Cillo, the New Jersey Supreme COU^ ultirnately rejected recovery for general damages on 'policy grounds' that it was "simply too speculative to permit an infant plaintiff to recover for emotional distress attendant on birth defects when that plaintiff daims he would be better off if he had not been bom."? The majority said, that "[sluch a claim would stir the passions of jurors about the nature and value of life, the fear of non- existence, and about abortion" and that such a "mix is more than the judicial system cm digest".566

However, we saw in the previous Chapter that public policy reasons in favour of the absolute sanctiiy of life and antipathy towards abortion were no longer considered to be vaiid le@ justification for rejecting 'wronghil biith' actions. It is therefore difticult to see how these reasons could be a justifiable ground for rejecting 'wronghil life' actions.567 This is partly

Becker v. Schwar;. supra note 1 1 at 8 10. lbid. 565 Procanik v. Ciilo, supra note 10 at 763. The New Jersey Supreme Court said that, "(t] he uttirnate decision" was "a policy choicc summoning the most sensitive and careful judgement,". 566 Ibid. See also Profitt v. Barlolo, supra note 263 at 243: 'Consequently, we are reluctant to resolve al1 of the moral and public policy arguments that others at a different or higher lcvel have declined to address.". 567 A fact referred to earlier and often overlookec! in 'wrongful Iife' actions is that just as many cases involve pre-conception negligence where abortion is never an issue. Ill

because of the legality of abortion and societal endorsement of the practice of genetic counselling. However, it is also difficult to see how the principle of the sanctity of human life has any application to the child's claim in a 'wrongfid life' action, given that the principle applies to the living, as opposed to the

And yet some judges, most notably the English Court of Appeal in McKay, while refer~g fleetingly to the applicable abortion legislation, nevertheless proceeded to disregard it prefemng in stead to rely on presumed public policy in support of the absolute sanctity of hurnan life- Only the Supreme Court of Califomia in Turpin, criticised the view that 'wrongful Iife' actions could be rejected solely on the basis of public policy concerns that non-existence could never be preferable to life in an impaired state? The Court said "we do not think that it is accurate to suggest that this state's polïcy estabiishes - as a matter of law - that under al1 circumstances 'impaired life' is 'preferable' to 'nonlife 9 .19 . 570

In the context of what are referred to in this Thesis as the 'end of life' cases, Anglo-Ameican courts have reco,gnised that there are circurnstances in which it might be considered that a particular life is not worth living.n' Angio-American case law clearly recognises the right of compefent ndults to refuse life sustaining or life prolonging treamten? Accordingly, in

E-g- Capron- sirprn note 27 at 653. 569 Turpin. supra note 9 at 96 1-62.

570 Ibid. at 962. 571 This discussion of the 'end of life' cases does not specifically include euthanasia and assisted suicide, which while relevant to the anal03 with 'wrongful life' cases, Mise more controversial issues beyond the scope of this Thesis- E-g. Malerre v. Shulnran (1990) 72 OR (2d) 417.67 DLR (4') 321 (Ont. CA)(Battery to $ive Jehovah's Witness blood transfusion against her refusal); AG.. of Brirish Columbia v. Asrajôroff [1984] 4 W.W.R. 385 (B.C.C.A.) (Prison authorities could not force feed prisoner whose life was threatened by protest fast): Secrerary of Srare for the Home Ofice v. Robb [1995] 1 AI1 ER 677 (hunger striker could not be force fed); Airedale NHS Trust v. Bland 119931 1 AI1 ER 821 at 861 (The principle of the sanctity of life "does not authonse forcible feeding of prisoners on hunger suike."); Bouvia, supra note 46 I ;Re T (adulr: reficsal of medical rreatmenr) [1992] 4 Al1 ER 649, (1992) 9 BMLR 46 (C.A.) (Jehovah's witness aIlowed to refuse lifc saving blood transfusion). The right to refuse life-sustaining ueatment is more controversia1 when the womm is pregnant and the Iife of the suwival of the fetes is at stake, for example, in court ordcred caesareans: See generally Kennedy & Gmbb, supra note 4 1 at 346ff. The Courts are careful to avoid sanctioning suicide thus maintaining a sometimes questionable distinction between 'kiIling' and 'letting die*: E.g. Daniel P. Sulmasy. "Killing and Allowing to Die: Another Look" (1998) 26 The Journal of Law, Medicine & Ethics 255; Bernard Dickens. "Medically Assisted Death: Nancy B v. Hotel-Dieu de Quebec*' (1993) 38 McGill LJ. 1053. Bouvin, the California Court of Appeal authorised the hospital to comply with the petitioner's wish to remove a nasogastric feeding tube inserted against her will, even if the result would be to "hasten or cause Bouvia's eventud death9, .573 The petitioner was a 28-year old alert woman who suffered from severe and irreversible cerebral palsy, quadrïplegia and degenerative and crippiing arthritis. She was in constant pain, immobile, bedridden, and dependent on others and she had, on several occasions expressed a wish to be allowed to die.

The Court obsewed that in Elizabeth Bouvia's view, "the quality of her life has been diminished to the point of hopelessness, uselessness, unenjoyability and fnistratio~~".~~ Accordingly, she "may consider her existence rneaningless."?s The Court further held that the State's interest in preserving iife did not outweigh the patient's right to refuse treatment? The Court said'

We do not believe it is the policy of this State that al1 and every iife must be preserved against the will of the sufferer. It is inconpuous, if not monstrous, for medicai practitioners to assert their right to preserve a life that someone else must live, or, more accurately, endure for 15 to 20 years. We cannot conceive it to be the policy of this State to inflict such an ordeal upon anyone.s77

A developing body of Anglo-American case law also recognises that there may be circumstances where it is appropriate to withdraw or withhold l$e-sustaining treamtent on behdf of rnentaily incompetent adults and, more relevantly here, severely disabled newborn~.~~These cases implicitly, and sometimes also explicitly, recognise that a severely

Bouvin, supra note 461 at 305. See also. Nancy B v. Horel-Dieu de Quebec, (1992) 69 C.C.C. (3d) 450 (Que. S.C.)(24 year oId patient with Guillain-Bare syndrome allowed to refuse continuation of artificial food). 574 Ibid. at 304. nsIbid. Ibid. at 305. 577 Ibid. The decision was approved by the California Supreme Court in Thor v. Superior Coun (1993) 855 P 2d 375 (recognising right of competent adult prisoner who was quadriplegic to refuse artificial food and mcdicine). 578 These cases can crudely be categorised as follows: Incom-petent adults: E-g. In rhe Marrer of Claire Conroy (1 985) 486 A 2d 1209 (NJ Supr Ct)(life-sustaining ueatment withdrawn from incompetent elderly patient with organic brain syndrome, hemdisease, hypertension & diabetes); C'zan. supra note 461 (25 year old woman in persistent vegetative state from car accident): Auckland AHB v. Attorney General [i993] 1 NZLR 235 (NZ disabled Iife might not be worth continuing. In overturning its earlier position in Gleimtan and Bennan v. AlZan and allowing special damages to a chiid bom with congenital nibella syndrome. the Supreme Court of New Jersey in Procanik v. Cillo was copisant of its recent *'trail blazing" decision in In re ~uinian.~

The New Jersey Supceme Court in In re Quinlan, was caiied on to balance the qualiiy of fife of a 22-year old woman in a persistent vegetative state in detemiinhg whether to diow her parents, as her guardian or surrogate, to terminate ~ife-su~~ort.~~ùi recognising the pardian's power to authorise the withdrawal of Me-support, the Court effectively recognised that the burden of continuing Iife couid be outweighed by any supposed benefits that life might continue to offer?"

In Re J, the English Court of Appeal unanimously affmed the decision of the trial judge that consent could be withheld for ce-ventilation of a severely disabled newbom that would

H.Ct.)(Man with Guillain-Barre syndrome could be withdrawn from life support): In the Marrer of Berh Israel Medical Center, 5 19 N.Y.S.2d 5 1 1 (1987)(74 year old stroke victirn could refuse to have gangerous leg amputated)(There was Wear and convincing evidence chat the burdens of continued life for this patient markcdly outweigh the benefits that further Iife would bring."); In re Guardianship of Granr, 747 P.2d 445 (Wash. 1987)(1ife-prolongingueatment withheld fiom 22 year old in the advanced stages of Batten's disease, an inheritcd degenerative condition of the centrai nervous system); Bland, supra note 572 (Nasogastric tube and antibiotics could be withheld from 18 year old in pvs) . Severelv disabled new-borns: E-g. Re J (a minor)(~vardship:medicul trearment) [1990] 3 Al1 ER 930, [199 11 Farn 33 (C.k)[cited to 3 AI1 ER]; Re B(a rninor)(wardship: medical treatment) [1990] 3 Al1 ER 927 (C.A,)(hereinafter Re B); Re Hofbauer (1979) 395 NE 2d 1 f 09 (NYCA)(parents could refuse radiation and chemotherapy for child cancer in favour of nutritional diet); Re J(a niinor)(wardship: medical trearmenr) [1993] fam 15, [1992] 4 Al1 ER 514 (CA)(hereinafter Re 4; Coimre-Jacquet v. Monrreal Children S Hospital, [1986] R.J.Q. 1221,28 D.L.R. (4h)22,3 Q.A.C. 209 (sub nom. Montreal Children 3 ' Hospital v. J)(Que. C.A.)(Que bec Court of Appeal overturncd decision of Que bec superior court judge gmting hospitais' petition to continue chemotherapy veatment of child with cancer against wish of parents with very low chance of survival). However, there is relatively scant judicial attention to the question of terrninating Iife-support for mentally incompetent patients in Canada and Australia: !Cg- heySneiderman, John C. Irvine & Philip H. Osborne, Canadian Medical Law. 2" ed. (Toronto: Carswell, 1995) at 432.

579 Sneiderman, ibid. at 435, (1976) 70 NJ. 10,355 A2d 647 [Cited to 355 Md]. 581 Ibid. at 652. The precedent set in Quinlan has been followed in approximately 20 American State appelIate courts with respect to patient's in a persistent vegetative state (pvs): Sneiderman, supra note 578 at 435. See nlso Crrcran. supra note 46 1 at 284 (Supreme Coun of Missouri did not err in requiring as a procedurai safeguard that "dearand convincing" evidence be adduced of previously expressed intention to be withdrawn from artificial life support before it ovemdes the State interest in the preservation of Iife). prolong his life in circumstances where without treatment, he would die of natural causes.s* The child was a ward of the court that was bom prematureiy and suffered from serious congenitai anomalies. He was unlikely to live beyond adolescence. He had ken ventilated twice before when bis breathing stopped, the treatment king painfùi and hazardous, The doctors and parents were in agreement that should the child stop breathing again, there s hould be no mechanical ventilation.

Lord Donaldson said, "[tlhere is without a doubt a very strong presumption in favour of a course of action which wili prolong Life, but -.- account has to be taken of the pain and suffet-it~gand qualiv of life which the child will experience if life is prolonged.".m Similady, Baicombe U observed that, "to preserve life at al1 costs, whatever the quality of life to be preserved, and however distressing to the ward may be the nature of the treatment necessary to preserve life, may not be in the interests of the ward. '7. 584 Taylor U also did not let the unknowable status of death or the 'afier-life' prevent him from concluding that the child's life rnight not be worth living. He said, "[dlespite the court's inabiiity to compare a life afflicted by the most severe disability with death, the unknown, 1 am of the view that there must be extreme cases in which the court is entitled to Say: 'The life which this treatrnent would prolong would be so cruel as to be intolerable-79, .585

The 'end of life' cases also estabiish, contrary to the view of the New York Court of Appeal in Berman v. Allan, that the primary role of physicians is no longer, if it ever was, the 'preservation of life' at al1 costs. In the contemporary context of the care of the tenninaüy ill, in which modern technology has made it possible to artificialiy pro-long life beyond what was previously thought possible, the primary role of physicians has increasingly becorne seen

Re J, srcprn note 578. See also In re Guardianrhip of Barry, 445 So.2d 365 (FlaDistCtApp. 1984)(parents of 10 mnth old terrninally il1 child in permanent vegetative coma can refuse order to discontinue life support). Ibid. at 938 [Ernphasis addcd]. Ibid. at 942. Bakolrne L.J. further observed. "[oJf course the court will approach those interests with a strong predilection in favour of the preservation of life, because of the sanctity of hurnan life. But there neither is, nor should thcre k,any absolute rule that, Save where the ward is already termindly ill, i.e. dying, neither the court nor any responsible parent can approve the withholding of life-saving treatment on the basis of the quality of the ward's life.". Ibid, at 944. to be the relief of s@ering?16 This is no less applicable in the case of the care of severely disabled newborn~.~~in this way, the prolongation of iife at al1 costs might be viewed as a disrespect for and disavowal of the prïnciple of the sanctity of human life itself.'*

Accordingly, to the extent that the 'end of iife' cases recognise that there are situations in which the burden of a patient's existence might be such as to warrant the discontinuation of life-sustaining treat~nent?'~they provide a usehl analogy for 'wronghil Life' cases. Both categories of case allegedly require a cornparison to be made between an impaired life and non-existence. Whiie 'wrongfui Me' actions purportedly require a cornparison with never having been boni, as opposed to death, in the 'end of life' cases, both are equally 'unknowable' to a judge or jury?m The important point is that in the 'end of me' cases, the Courts do not balk from a comparison between an impaired iife and death or the 'unknowable' state of non-existence.

However, the d~ferencesbetween the 'wrongful life' cases and the 'end of life' jurisprudence are just as important as the similarities. The principie of the sanctity of lr$e arguably has no application in relation to the unborn that it might have once a person who is already living wants to die?91 Furthermore, a child in a 'wrongfd Life' case does not seek a mandatory injunction allowing her to die, only compensation for wrongfuily having been aliowed to be

E.g. Bouvia, supra note 461 at 306 where the Caiifornia Court of Appeal noted that Elizabeth's decision to remove the Nasogasuic tube did not prevent the hospiral and medical staff from perfonning "asubstantial, if not the greater part of their dutj, Le., that of trying to alleviate Bouvia's pain and suffering."; M. Somerville, "Pain and Suffering at the Interfaces of Medicine and Law" (1986) 36 U-T-LJ.286. 5-87 E.g. Re C(A Minor)( Wardship: Medical Treatmenr) [ 19891 2 Al1 ER 782 (C.A.)(In the case of baby C suffering from severe congenital hydrocephalus, the doctor's duty was to 'ease the suffering' of the patient).

58g E. Kcyserlinck "Sanctity of Life or Quality of Life**,Study written for the Law Reform Commission of Canada ( 1979) (Canada Government Publishing Centre) at SOff- "In such instances, [excncciaring. intracrable and prolonged pain and sugering or a minimal capaciry ro experience. ro relate wirh orher human beings] to preserve Iife could in some cases be a dishonouring of the sancuty of Iife itself. and allowing even death could be a demonstration of respect for the individual and for human life in general.". Sneiderman. supra note 578 at 479. 590 But see further infra note 649 & accompanying text. 59 1 Sce furthcr supra note 568 & accompanying text- b~rn."~~The Court does not need to determine whether this chiid should continue to live, only whether she has ken hanned by wrongfuly having been allowed tu be bom. Ciearly, far more is at stake in the 'end of iife' cases. In a 'wrongfùl iife' case, the cornparison with non-existence is merely hypothetical making the Court's obsession with it aU the more difficult to comprehend. The continuation of the child's very existence does not tum on the Court's decision, but the qualiry of that existence does, assurning that monetary compensation flows from the defendant's breach.

It is cificuit to see how an award of damages to a severely handicapped child in a 'wrongful life' action could be consuued as a 'disavowal' of the sanctiry of hunran Clarke C.J. dissenting in Goldberg v. Ruskin, concluded that by refusing to adjudicate the issue and in denying recovery for 'wrongful life', the majonty was effectively sanctioning the view that a disabled life was preferable to non-existence? He said that by its decision to deny recovery, "the court implicitly decides that Jefiey Goidberg was better off enduring a life of pain, blindness, deafhess, paralysis, seizures, and mental retardation, inevitably ending in early death, than not living at dl.". Clarke C.J. suggested that for a child such as Jeffrey Goldberg born with Tay Sachs disease, "nonlife may have ken preferable to Life.".sJS Clarke C.J. concluded poignantly that, "It is surely srnail cornfort to the child to know that the majority believes his life was worth living.79 .5%

A further difficulty with the Courts reasoning on the question of injury in 'wrongfùl life' cases is that they confuse the issue of whether non-existence can ever be preferable to an impaired life with the issues of who decides this question and on what basis. The Courts Say that even if a severely impaired life was wrth living, this is not a decision for either a judge or jury to make. However, in one sense, this is not a decision that a judge or jury need make

592 E-g. Capron, supra notc 27 at 654: 'The child is neither espousing the vicw that a person with impairments does not deserve the law's full protection nor making an irnplicit request for euthanasia". 593 E-g. Harbeson, supra note 2 at 497. 594 Guldberg v. Ruskin, supra note 9 at 4 1 1. '"Ibid. This was also the view of the Depu~yPresident of the Israeli Suprerne Coun in Zeimv, supra note 1. Feinberg & Capron, supra note 27 at 657ff. See further, infra note 628 & accompanying text, Ibid. See also the dissenting opinion of Justice Fiaherty in Speck v. Finegold, supra note 17 at 1 15. in order to recognise the 'wrongful iife' action. As previously discussed, the difficult moral decision whether to avoid the birth of a severely disabled child is for the child's parents to make. The Court need not agree with the parents assessrnent of the quaiizy of the child's Irlfe in order to estabiish that the child's birth with a particular congenital disease is an injury to the child, only that the parents decision was made within the boundarïes of the law.

In the context of a 'wrongful iife' action, this means that, at least in Anglo-Canadian law, the decision must have ken one that a reasonabie person in the parents position could have made. This approach is consistent with the reasonabie person test, whkh ought to be a familiar standard for judges and junes in ton law cases. It is also the approach adopted by the Deputy President of the Israeii Supreme Court in the seminal Israeii 'wronghl life' case. 597

The Court may not be convinced, in light of, Say the triviality of a particular disability or disease, that on the applicable test of causation, the evidence establishes that the child would not have been bom 'but for' the defendants' negligence. Accordingly, in Goldberg v. Ruskin, while Clarke C.J. observed that "[iln the case of Jeffrey Goldberg, afflicted with Tay- Sachs, the trier of fact might be justified in finding that the burdens of life which consists of four years of excmciating physical pain and rnentat retardation do not exceed its benefits", he also acknowledged that "[i]n the case of a person afflicted with congenital blindness or deafness, the trier of fact rnight be justified in finding otherwise."?

The Supreme Court of New Hampshire in Smith v. Cote dismisses the analogy between 'wrongful Me' cases and the 'end of life' cases on the bais that in the 'end of life' cases, the court does not arrogate to itself the individual right to decide? However, neither do the courts in a 'wrongfbl life' case need to arrogate to themselves the right to decide whether a particular child should have ken born in order to recognise that the child's birth as a harm.

297 Sce further infra notes 629ff & accompanying text. 59% Goldberg v. Ruskiri, supra note 9 at 4 12. See also quote from Curlender,referred to at supra note 308. However, even in the 'end of life' cases involving teminally il1 newboms, while the Courts are perhaps rightly loathe to impiicate themselves directiy in decision-making, their role is apparently not as impartial and value free as the Supreme Court of New Hampshire would have us believe.

The emerging lepl consensus on the 'end of iife' cases involving severely disabled neivboms appears to support the view that the decision is prima facie one for the parents to make, in consultation with the doctoa, in the child's best inter est^.^ The Iegai basis of the decision is, however, complicated by the fact that the child, by vheof its live birth, is dready in being and has rights and interests of its own, which require legal protection. Nevertheless, the Court has an avowedly srcpervisory role, analogous to the role of the judiciary in public law when reviewing the decision of an administrative tribunal de novo or on the merirs. The Court has "no nght to substitute their view for that of the parent ... because ..- the law makes the assumption that parents are prima facie the decision makers.7, .601 Furthemore, "[i]t is not a good ground for [the Court] interfering with the parents decision to say [it] disagreefs] with it. 9, .602

However, where the child has been made a ward of the Court, the Coun does effectively arrogate to itself the decision whether to withhold iîfe-sustaining treatment under its parens patraie jurisdiction on the basis of the best interests test. Accordingly, in Re J, Lord Donaldson MR said, "[tlhe choice [to withhold treatrnent from a severely disabled newborn] is that of the parents or court if, by reason of his age, the child cannot make the choice and it is a choice which must be made solely on behaifof the child and in what the court or the

599 The Court said, "[s]imply put, the judiciary has an important role to play in protecting the privacy rights of the dying. It has no business decIaring that arnong the living are people who never should have ken boni.".: Smith v. Cote, supra note 10 at 352-53. 600 E.g. See Kennedy & Gmbb. supra note 41 at 252ff. In the case of incompetenr adulrs, Arnerican and EngIish Courts differ as to whether the proper test is the besr interesrs tests or the substitutedjudgement test. pursuant to which, the question is whether the patient, if competent. would have wished to discontinue life-support: E-g. see Kennedy & Gmbb, sctpra note 4 1 at 282ff & 1 180ff; Sneiderman, supra note 578 at 434-35. The 'substituted judgement' test broadly reflects the ethical principle of auronomy where as the 'bat interests' test reflects the rthical principle of benefcence: Ibid. at 442. 601 Kennedy & Grubb, ibid. at 270. 602 Ibid. "In our view, the court's proper role is to revierv but not usurp."- parents conscientiously believe to be hls best interests-9. .603 Accordingiy, the role of the Courts in deciding whether it is in the best interests of a severely disabled newborn to be allowed m die is probably no less subjective and value-laden than their role in ascertaining whether a child has been injured by wrongfùlly being allowed tu be born. in Procanik v. Cillo, Justice Handler, who wouid have allowed the infant to recover general darnages as well as special damages, rejects the majority view that the only basis for permitting recovery on behalf of the infant is the preference of nonl$ie over life as a "self- created hypothesis 91 .6lu In relation to the majority's professed "lack of cornpetence to deal with the dilemma", he said,

1 do not think it right, however, to deny damages to the afflicted child because we are confounded by the complexities of comparing existence with non- existence. We have dealt with this intractable conundrum in other settings. . However, the COU^ itself need not express a preference of Life over nonlife but only to understand that individuals in necessitous situations have the right to mdce that choice- We should acknowledge, therefore, that in determining whether the afflicted infant has a cause of action for wron,ofl Iife: the COU^ is neither compelled nor asked to assume a Hamlet r~le-~'

Justice Handler reiterated that the child's cornplaint in a 'wron,oful Life' case is predicated on the failure of the doctor to provide her parents with the opportunity to make an informed choice on her behalf and that substituting the parents judgement for that of the child provides "a practicable way to reco,@se the injwy to the child. 9, .6tK He observed that "[a] court or jury, in cases such as these, is not called on to make its own judgement or to be guided by its orvn subjective moral values as to whether the child should have ken born. r* -607 Indeed, "Et] he metaphysical dilernma of comparing existence with nonexistence is not presented and

Re J, supra note 578 at 936. However. there are arguably no dear or adequate guidelines yer developed as to the specific requirements of the 'kst inrerests test'. E-g. See Dresser, Rebecca, S. & Robertson, A., John, "Quality of Li fe and Non-Treatment Decisions for Incompetent Patients", (1 989) 17:3 Law, Medicine & Health Care 234. 604 Procanik v. Ciflo,supra note 10 at 765

'O5 Ibid. He concluded rhat "the Court itself need not engage in the prospect of valuing Iife but only recognize that this is an individual right, the wrongful loss of which justifies redress.": Ibid, at 770.

'O6 Ibid. at 769. does not have to be resolved in determinhg whether a familial tort has ken conunitted-9, .608 AccordingIy, "the right of parents to decide whether they should bear a particuiar child is at stake, not judicial recognition that a certain life is worth living. ". 6a, In vindicating the child's interest in avoiding birth with disabiiity or disease, therefore, the Court does not arrogate to itself the choice, but ailows the individuai's guardian or surrogate to make that choice on the child's behalf6''

607 ibid.

608 Ibid. 609 Ibid. 610 By suggesting chat the parents by deciding for the child are reflecting the child's ri@ of selfdetermination, Justice Handler is here reflecting the Arnerican 'substituted judgment* test for making decisions on behalf of incornpetent aduIts & children. See also In In re Conroy, 98 NJ. 32 1,486 A,2d 12099 (1985), at 364368.486 A.2d at 123 1 - 1233, (the right of self-determination should not be lost merely because the individual is unable to scnsc a violation of it as the right of an incompetent to refuse treatment could be exercised by a surrogate decision maker using a substi tuted judgement test). In England, Canada and Australia, the approach is more likely to base the decision on the child's best interests. CHAPTER 4: ANALYSIS OF 'WRONGFUL LIFE' ACTIONS: A 'PERSON AFFECTING' CONCEPTION OF EiARM & THE LIMITS OF LIABKITY IN GNGLO-AMERICAN TORT LAW

In an ideal world, ail those who have suffered as a result of the negligence ought to be compensated. But we do not Live in Utopia: we live in a practical world where the tort system imposes limits to the classes of claims that rank for consideration as weil as to the heads of recoverable damages. This results, of course, in irnperfect justice but it is by and large the best that the comrnon iaw can do?

4.1 'Wrongfd Life' Actions & A ‘Person-Meeting' Conception of Ehrm

It was argued in the previous chapter that if the child's complaint in a 'wrongful me' action is characterised as her birth with congeniral disability, rather than her existence per se, then her claim rnight be recognised without having to compare her impaired life with non- existence. However, even if her complaint is properly characterised as her birth, it was argued that it is nevertheless possible to rneasure the child's damage in being born with such congenital disability or disease. In this way, many of the reasons provided by Anglo- American courts for refusing to recognise the 'wrongful Life' cause of action could be exposed on closer analysis as value-laden and illegitimate. This Chapter wiU re-examine the 'logico-legai' objection to 'wrona@ùl Life' actions and a 'person affécting' conception of harm in tort law, which arguably underlies or explains the conclusion by the vast majority of Anglo-Arnerican courts that 'wrongful life' actions are not justiciable.

It is apparent that whichever way the child's claim in a 'wrongful life' action is characterised, it is ultimately distinguishable from a normal prenatal injury case by the indisputable fact that the defendant's wrong resulted in the child's existence!12 The difficult question is ascertaining the significance of this distinction for tort Iaw. Can it be dismissed as the mere

White v. Clrief Constable of South Yorkshire Police [1999] 1 Atl ER 1 at 30(H.L.) Lord Steyn concluding that "the law on the recovery of compensation for pure psychiauic hmis a patchwork quilt of distinctions which are difficult to justify.". at 38 (denying Iiability to 4 police officers who cIaimed post traumatic stress disorder in the afterrnath of the Hillsborough Football Stadium disaster in England in 1989). fortuitorts timing of the defendant's negligent act or omission, occurring simultaneously with the chiId's conception? Or does it go to something more, namely, the special nature of the damage complaioed of, king the child's existence per se? We have seen that the Curlender Court adopted the former view, when it concluded that '"[tlhe circumstance that the birth and injury have corne hand in hand has caused other courts to deal with the problern by barring

77 613 recovery. ,

However, Tedeschi would not reduce the problem to one of timing!14 Neither would he reject 'wrone@bl Life' actions because of the supposai 'metriphysical problems' they raise or because of the purported *impossibility9of measuring the child's damages? Rather, Tedeschi's rejection of the 'wrongful Me' action is based on what he calls, the "logico-legai" difficulty raised by the conception of damage or hami in tort law that at fmt blush seems unremarkable? pursuant to this conception of hnm, the plaintiff suffen loss or detriment as a result of the defendant's wrong such that she is worse ogthan she otherwise would have been but for the ~ron~.~''This conception of hmis clearly derived fi-om the 'but for' test of factual causation and the compensatory pnnciple of assessing damages in tort law, or restitrctio in integmm.618 It is aiso the conception of hmadopted by Derek parfit,"" Michael ~a~lesy~and Joel ~einber~."' It has been varïously referred to as a 'person affecting', 'identity-detennining' or 'othenvise condition' of harma6=

612 See discussion at supra note 209 & accompanying text, 613 Curlender. srcpra note 9 at 488. See also the Zepeda Court's reasoning at supra notes 226 & 227 & accompanyin,o text. Finally. see the comments of Adrian WhitfieId at supra note 218 & accompanying text. 614 Tedeschi, supra note 1 14 at 528. ''' Ibid. at 529.

616 Ibid. 617 lbid 618 E-g. Tedeschi claims the Iegal concept of harm 'derives' from a cornparison of the plaintiff s current position with the position the plaintiff would have been in had the wrong not occurred: Ibid. 619 De& Parfit, "On Doing the Best for Our Children", in Michael D. Bayles, ed., Ethics & Popularion (Cambridge: Schenkman, 1976)[hereinafter Erhics & Popularion] at 100. 620 Michael D. Bayles, Reasons and Persons (Oxford: Oxford University Press, 1984) at 367lhereinafter Reasons & Persons]: MichaeI D. Bayles, "Hmto the Unconceived" (1976) 5 Philosophy & Public Affairs 292, We have seen that this conception of hmprovides an adequate account of harm in an ordinary prenatai injury case. So, for example, a defendant who negligently drives a motor vehicle injuring his prepant passenger, who subsequently gives birth to a disabled chiid is Iiable to the child for her injuries if it is shown that she would have been born free from injury 'but for' the defendant's negligence?

However, because in a 'wrongiül Me' case, the child could not have been bom free from congenitd disabitity or disease 'but for' the wrong, there is no comparison of a healthy Me frorn which to measure her Ioss. Because "no comparison is possible" with a heaithy Iife, no damage has ~ccurred!~~This is not because an impaired life cm never be worse than not being born, but because "there is no place for comparison" when we are talking about life, the very esse of the living? Accordingly, Tedeschi says that the absence of damage in a 'wrongîül life' action "is not si.mply the result of a technical-legal attitude; it is also a logical concl~sion."."~~In this way, tiie plaintiff in a 'wrongful life' action "cuts from under himself the ground upon which he needs to rely in order to prove his damage. 9- .627

Feinberg and others, on the other hand, concede that the birth of a child with congenitd disabiIities could constitute a hann to the child in those rare cases in which the child's

62 1 This is what Feinberg refers to as the 'Counterfactual' element in harming: J- Feinberg, "Wrongful Life and the Counterfactual Elernent in Harming" in Coleman, J & Paul, Ellen, F., eds,, Phitosophy and Law (Oxford: Basil Blackwell. 1987) 145 at 149[hereinafter, Pldosophy & Law];J. Feinberg, "Comment: Wrongful Conception and the Right Not to be Harmed" (1985) 8 HarvJ,L. & Pub. Pol'y 57. See generally, Joel Feinberg. Harm ro Others (New York: Oxford University Press, 1984)[hereinafter. Ham ro Others]. '" See genenlly, E-Haavi Morreim. Toncepcion and the Concept of Hmw(1983) 8 The Journal of Medicine & Philosophy 137 at 140ff. See also Cooper-Stephenson, supra note 469 at 790 who says that 'loss' in tort law is not mereIy a detriment, injury or defect suffered by a person cornpared to 'what might have ken'. Rather. the civil law meaning of 'cornpensable loss' "denotes a difference between two conditions of 6eitzg"- Sec cases discussed above at Chapter 1. 624 Tedeschi, supra note 1 14 at 529. 625 Ibid. at 530.

6M Ibid. impaired life could be said to be worse thm non-existence or not wod living6= Feinberg argues that al1 children have a birthrïght to a minimliy decent exi~tence?~He says, "[a] grossly impaired infant cornes into existence not simpIy with rights, but with already violated rights" and that "[flrom the moment such an infant is born he has a grievance - a claim that he has been wr~n~ed.".~Accordingiy, "if before the child has been bom, we know that the conditions for the fulfilment of his most basic interests have already ken destroyed, and we permit him nevertheless to be born, we become a party to the violation of his rights. 97 .631 In this way, Feinberg is able to conclude that a chiid "bas ken harmed, in the full and legaüy relevant sense, only if he would be in a better condition if he had never been born at dl.97 .632

Feinberg explains that in an ordinary case of pst-natal hm, not ail of the plaintifrs inreresrs need to be setback in order for the defendant's wrong to hann ber? Accordingiy, the defendant's wrong might simultaneously result in harrn to the plaintiff while also confemng a bene@ provided there is a net worsenirzg of the plaintiff's overall position as a result of the defendant's wrong."Y This view might explain why the law, in some contexts,

6223 E.g. Joel Feinberg, Ham to Others, supra note 621; Derek Parfit, Ethics & Popularion, supra note 6 19 at 10 1- 102. Note chat it is debatable whether the terrn, "worth living" is an accurate way to describe the requirement of Ioss or detriment of damage in tort law. See also Haavi Morreim, supra note 622 ;Mritthew Hanser, "Harming Future People", (1990) 47 Phil. & Pub. Affiïrs 47. Capron also supports this 'intermediate' position in 'wrongful life' cases: supra note 27 at 648,657-660.

'~91. Feinberg, supra note 621 at 7 1: Feinberg, Ham ro Others, supra note 621 at 101. See ais0 Bonnie Steinbock and Ron McClarnrock, "When is Birth Unfair to the Child?" in John D. Arras and Bonnie Steinbock. eds. Erhical Issues in Modem Medicine (Caiifomia: Mayfield Publishing, 1995) at 390. Ibid. Elizabeth Collins similarly argues chat claims for 'wrongful life' may be reclassified as clairns for 'wrongful impairment' based on a child's nght "to be born a whole, functioning human being": EIizabeth F. Collins. "An Overview and Analysis: Prenatal Torts. Preconception Torts, Wrongful Lifc, Wrongful Death and Wrongful Birth: Time for a New Framework" (1984) 22 J. Fam. L, 677 at 706-708. 63 1 Fcinberg, Harm to Orhers, supra note 621 at 99. Kavka also provides an account of a 'resuictive life', pursuant to which one is harmed by king brought into existence in a disewd state if one's life is "significantly deficient in one or more of the major respects that generally make hurnan Iives valuable and worth living: Cited in Jeff McMahan, "Wrongful Life: Paradoxes in the Morality of Causing People to Exist" in Jules L. Coleman & Christopher W. Moms, eds. Rational Comrnitmenr and Social Justice :Essays for Gregory Kavka (Cambridge: Cambridge University Press, 1998) 208 at 226. This concept is also rernarkably similar to the concept of a 'diminished childhood* advocated by Judge Handler. 632 Joel Feinberg, supra note 62 1 at 67. Ibid at 72: "In ihose extreme cases then, when a child is born into a life not worth living, the infant is both wronged and put into astate of hm;thercfore he is harmed in the full sensc.". 633 E.g. Joel Feinberg. supra note 621 at 58; Feinberg, Philosaphy & Law, supra note 62 1 at 146. Ibid. regards premature death as a cornpensable harm in so far as it constitutes a setback to basic interesü in lifePU and life a benefit, except to the extent that the life is so irnpaired as to be not worth living. Accordingly, Feinberg concludes that in ''extreme cases", it may be "rationai to prefer not to have corne into existence at ail,r .636

This was also the approach adopted by Madame Deputy President Ben-Porat of the Israeli Supreme Court in Zeitzov, with whom Judge D. Levin agreed? In what has ken described as 'one of the most important decisions in Israeii legal history",lB the Israeli Supreme Court, by a majority of 4 judges to 1, allowed the appeal of a chiid boni with Hunter's disease against a physician who provided its mother with negiigent genetic advice. However the majority was divided as to the basis of the child's cfaim and the proper assessrnent of damages.

Judge Barak, with whom Judge S. Levin agreed, considered that the child did not have a right not to be born, but to be born free from disability or disease and that the damage was not the creation of iife per se but a disabled life? Accordingly, he considered that the proper basis for the assessrnent of damages was between a disabled life and a healthy ~ife.~~'In this respect, he acknowledged the difficulties posed by the compensation principle of tort law of restoring the plaintiff to the condition she would have been in 'but for' the wrong, but said that "this is not sufficient reason to prevent the courts from deciding the issue-9, .641

E-g.See Furfey v. Sarrin, 466 S.E.2d 522,525 (W. Va 1995)(discussing tortiously created injuries and the "more egegious harm, death"). See generally, Mark Strasser, supra note 23 1 at 70.

6M Ibid. at 69. 637 Zeicov, supra note 1 at 686. as Joel Levin, "Wrongful Life Decision in Israel" (1987) 6 Med Law 373 at 374. The case is over 80 pages long.

CJP Zeirzoi,, supra note 1 at 891: 'The damage caused by the doctor is a defective life. The damage is not the causing of life itself or the prevention of non-life. thus the term 'wrongful life' is not appropriate and is even dcceptive.".

MO Ibid. Ibid. at 894. Judge Ben-Porat, however, said that it was not possible to separate the child's disease from his very existence?' She would have preferred to base the childTsclaim on the basis that, in rare cases, non-existence may in the opinion of a reasonable person, be preferable to a disabled 1ifesa3 She said that the defendant must be compensated, not on the basis of a healthy life, but so as to ensure that once born, his quality of Me is improved so far as money cm

In the course of her judgement, Justice Ben-Porat made a usehl anaiogy between 'wrongfùl life' actions and the case of a defendant who cornes to the rescue of a plaintiff trapped in a fire."' The defendant is not absolved from liability if, once he has embarked on a rescue attempt to Save the plaintiff fiom the frre, he injures him, just because the conduct of the defendant also conferred on the plaintiff the benefît of life or freedom from injury by In the same way, why should the defendant in a 'wrongful life' action be completely absoived from liabiiity just because the act, which caused the injury, aiso conferred on the child the presumed benefit of life?a7

However, there are several potential difficulties with the argument put forward by Feinberg and others and adopted by the Deputy President of the Israeli Supreme Court, which partiy expIains the reluctance of the vast majority of Anglo-Arnerican courts to ernbrace it. Firstly, there is the argument referred to above by Tedeschi and others that it is simply not logically possible to compare life, a state of being with non-existence. On this view, even if it can be said that a particular life is not worth living, it cannot logically be said that it is worse than

M3 Ibid. at 686. M. Justice Ben-Porat said this approach was "both a legal and logical bsis for deciding whether there exists a 'Ioss' or 'lessening' as demanded by the definition of 'damage' in the Israeli Tort Ordinance- 6u Ibid. at 876, 879-80. Judge D. Levin based his decision on the sanctity of life. Judge Goldberg, disscnting, said the matter was for the legislature, not the Courts to decide. This approach to the assessment of darnages is consistent with the approach of the California Court in Curlender. 645 Zeitzov, supra note 1 at 881. M6 Ibid. This is probably consistent with Anglo-American ton law, which while it may not impose an affirmative duty to rescue, probably imposes liability once the defendant has voluntarily commenced a rescue attempt: Fleming, supra note 50 at 165. 647 Seana Shiffrin also supports the analogy: Seana Valentine Shiffnn, 'Wrongful Life, Procreative Responsibility, and the Significance of Hm"(1999) 5 Legal Theory 117 at 120. non-existence, in relation to which "there is never any subject for whom anything couid be good or bad, better or worse-97 .648

This argument was rebutted in the previous chapter by showing the wiliingness of courts in the 'end of Iife' cases to compare an impaired life with non-existence in sanctioning the withdrawai of artificial life support. However, even then, some commentators argue that never having been born is not analogous to posthumous non-existence, because the latter involves a comparison between two possible lives, a longer one and a shorter one, that the former does n~t.~~However, even so, many Courts have said that they would not let logic stand in the way of recognition of the chiid's claim where justice requiredSm

Secondly, and arguably more problematic for the child's claim, the traditional benchmark in the assessrnent of damages in tort law of a heulthy ive wouid not be available because the child never had the opportunity or chance to be born 'healthy' or 'whole'. Accordingly, the Courts must be prepared to adopt an alternative standard from which to mesure the child's 10~s.~~'We have just seen that Judge Badof the Israeli Supreme Court in Zeitzov, with whom Judge S. Levin agreed, chose to adopt the benchmark of a 'healthy' life to measure the child's 10~s.~'~However, in so doing, he had to ignore or overlook the fact that the child in a 'wrongful life' action could only have been bom disabled or nor ut ull. Madame Justice Ben- Porat, however, rehsed to ignore this reality and award darnages on the bais of a healthy Iife, aithough she was prepared to adopt a different, and on one view, equally xbitrary measure of damages. 653

(518 Jcff McMahan, supra note 63 1 at 2 15. M9 E.g. Philip Ci. Peters. Jr., "Protecting the Unconceived: Nonexistence. Avoidability, and Reproductive Tcchnology" (1989) 3 1 Ariz. L-Rev. 487 at 489. This argument, based solely on strict logical analysis, is arguabIy a bit precious when a Court is confronted with a severely disabled child in need of compensation. 650 See supra notes 5 17 - 5 18 & accompanying tes 65 1 Tcdeschi, supra note 114 at 538. Another possible objection to this 'intcrmediate approach' is the extent to which it relies on a supposed birthnght of the child to be born 'whole': See further supra notes 297.43 1. 652 Supra note 640. 653 Supra note 644. Judge Ben-Porat would have cornpensated the plaintiff so as to ensure that his qudity of Iife was irnproved so fat as money could do: Zeieov. at 876,879-80. The third problem with the 'intermediate' approach to 'wrongfül life' actions is the practical limitation that the cause of action, rather than the assessrnent of the child's damages, would depend upon the sev- of the child's di~abilit~.~This is because the action would only be allowed when the disabiiity was so severe that it could reasonably be concluded that the plaintiff was bener opnever having been bom. While it might reasonably be claimed that a child born with Tay Sachs disease would have been befier ofnot having been born, the vast nzajorïty of children bom with less severe disabilities, such as congenital nibella syndrome or Down's syndrome, would probably be excluded from making a c~aim.~~

It is arguably anomalous that a chiid with less severe disabilities is denied recovery altogether solely on the basis that her Life is deemed to be worîh living in circumstances where she still suffers physical and ernotional distress and incus rnedical and other expenses from her disease. A child with relatively rnild congenital disabilities may incur greater rnedical costs over time than a more severely disabled child with a shorter life expectancy, and accordingty rnight be more likely to benefit frorn an award of damages that a successful action would entai^.^^^

Tedeschi's seminal article on 'wrongful life' actions was referred to, although not always accurately, by judges in Williams, Gleitman and other cases that rejected the 'wron,oful life' cause of action. However, while most Courts that have considered the 'wrongfd life' cause of action have not explicitly relied on a 'person affecting' conception of harm to deny the action, sorne have nevertheless shown some vague awareness of it, Accordingly, the California Supreme Court in Turpin said that "~]ecausenothing defendants could have done

(251 This was a reason given by Barak J- in Zeitzov for refusing to adopt the approach of M. Ben-Porat and charactcrising the child's hmin a 'wrongfbl life' action as the child's binh: ibid. at 892. It is also the position argued for by Michael B. Laudor, "In Defence of Wrongful Life: Bringing Political Theory to the Defence of a Tort", f 1994) 62 Fordham L. Rev. 1675 at 1687 & Alan J- Belsky, "Injury as a Matter of Law: ïs this the Answer to the Wrongful Life Dilemma?" (1993) 22 U. Balt. L. Rev, 185 a&229,233,267. Laura Purdy considers that it is a 'moral' harm to allow a chiId to be bom wilh Huntington's Disease. However, even here we enter 'pey' areas as while WD is a lethal genetic disorder, resulting in a horrible death, symptoms generally do not occur uniil between the ages of 35 and 50: See Steinbock & McClamrock, supra note 629 at 396. would have given plaintiff an unimpaired Life, it appears inconsistent with basic tort principles to view the injuq for which defendants are legally responsible solely by reference to plaintiffs present condition without taking into consideration the fact that if defendant's had not been negiigent she wouid not have been born at all."w.

The Turpin Court said that "[ilf the relevant injury in this case is the change in the plaintzf's position attributable to the tortfeasor's actions, then the injury which the plaintiff has suffered is that, as a resuit of the defendants' negligence, she has been born with a hereditary ailment rather than not king born at alll*."s8 While the plaintiff had not phrased her cIaim for generai damages in these terms, most courts and cornmentators recognised that the basic daim of 'injury' in a wrongful Life case was that non-existence would have been preferable to existence in the diseased tat te?^

Similady, in Becker v. Schwartz, Judge Fuchskrg would have dismissed the infants claims, but not because of the "professed inability to calculate the extent and amount of the Rather, because there can be no ton "except in the case of some individual whose inrerests have suferes' and in 'wrongful life' cases, there was no way of showing that the child's 'interests' have suKered by king born disabled."' Judge Fuchsberg concluded that, ".. .whatever be the metaphysicai or philosophical answer - speculative , perhaps debatable, but hardly resoivable - and however desirable it may be for society to otherwise

"56 Fcinberg argues, nghtly 1 think. that special damages for extraordinary medical and other expenses are the only damages that seem applicabte to a child whose life is so terrible that it is not worth living: Philosophy & Law, supra note 62 1 at 16 1 - Turpin. supra note 9 ar 96 1-62. ''' lbid [Ernphasis added].

659 Ibid. See also Lininger v. Eisenbaum. in which the Supreme Coun of Colorado said thah "Pierce's characterization of his injury [as his congenital disabilities] does not change the nature of the derriment he claims to have suffered: namely, that he was born impaired instead of not being born.": supra note 9 at 1209 [Emphasis added]. 6M1 Becker v. Schwan,-, supra note 1 1 at 8 14. 66 1 Ibid. [Emphasis added]. Cwkc I concurred. treat these problems with sensitivity, I am compelled to conclude that the matter is just not

The Supreme Court of Pennsylvania in Ellis v. Shemn observed that the concept of legal injury "connotes interference from without; it connotes the dismption of intemal contr~ls.".~~~However, the Court arguably went astray when it sought to distinguish 'wron,oful life' cases fiom ordinary prenatal injury cases on the basis that in the former, "the alleged interference was the absence of inte$erence in a nanird process.".w The ordinary prenatai injury cases discussed in the fmt Chapter show that the failure to halt a natural disease process is just as capable of resulting in 'compensabIe hm' as is a wrongful act that positiveiy alters the constitution of an otherwise healthy child- It is the failure to advise of the option of avoiding the child's birth in circumstances where the ody alternative to a disabled life for the chiid was not behg born that distinguishes 'wrongful life' cases from ordinary prenatal injury cases under a 'person affecting' conception of hm.

Furthemore, some Engiish speaking courts have sought to rely on a 'person affecting' conception of harm to deny a child with congenital disabiiities compensation, even in contexts where it is ciearly inappropriate. For example, a Scottish Court relied on the Anglo- Amencan 'wrongfkl life' cases to embrace a 'person affecting' conception of hann to affm the decision of a statutory body refusing a child applicant recovery under a statutory compensation scheme for the victims of crime? The child was born with serious congenital disabilities as a result of the incestuous rape by her father of his 15-year-old daughter who became pregnant with the applicant, The father was convicted of incestuous sexual intercourse and sentenced to 8 years imprisonment. The Scottish Court held that the infant's injuries resulted from the consanguinity of her parents and were not 'personal injuries' directly attributable to a crime of violence within the meaning of the chern ne.^

Ibid. at 8 15 [Emphasis added].

6U Ettis Y. Sherman. supra note 17 at 1329. Ibid. [Emphasis added].

665 Pascoe. supra note 213. Ibid. In her subrnissions, counsel for the applicant challenged the notion that there must be an alteration to the 'otherwiseT condition of the plaintiff 'but for' the wrong before it could be said that 'injury' had occurred? She argued that the ordinary meaning of the word, 'injury' was the mere occurrence of a wrongful act or omission that caused s~tffiv-in~.~ Defined in such a way, the birth of a child with congenital disabilities could constitute injury or damage at law. This is also the conception of harm that counsel for the plahtiff in McKay adopted when he argued that the child's damage was simply a "consequence of which flows from a breach of duty which society and the law should concur in treating as something which the plaintiff ought not to suffer and for which she should be compensated. *t .669 This is effectively the same as a 'non-person affecting' conception of harm argued for by, for exarnple, Harris, who says that the wrong in 'wrongful MeT cases is simply in "bringing avoidable suffering into the worldTT .6'10

However, Lord Osborne of the Scottish Court relied on the 'wron,aful Iife' cases to define injury more narrowly pursuant to a 'penon affecting' conception of harm."' He concluded that because "the child concerned never had, nor could have, any existence Save in a defective state", it was "inevitable that her plight, grievous though it may be, cannot be seen as 'personai injury', within the meaning of ... the Scheme." . 672 The flaw in the Scottish Court's reasoning, of course, is that it considers itself constrained by the fornalistic logico-

667 Ibid. at para 62. Ibid at paras 12.62. The Oxford Enplish Dictionary defines 'hm' broadly as *'evil (physical or ohenvise) as donc to or suffered by some person or thing; hurt, injury, damage, mischief.": Cited in Bettina Schone- Seifert. "Hm" in Encyclopedia of Bioerhics, supra note 5 1021- 1025 at 102 1. 669 McKay, supra note 10 at 1 170. This is also consistent with the conception of harrn advocated by Justice Larson in Ellis v. Shannan & Justice HandIer in Procanik v. Ciiio, refemd to supra at notes 492 - 499 & accompanying text. See also supra note 494 & accompanying text. 670 John Harris, Wonderwoman and Superman: The Erhics of Human Biorechnology (Oxford: Oxford University Press, 1992) at 90. The Amencan Restatement of Torts simply defines injury as "invasion of any legally protccted interest of another": Restaremenr (Second) of Torrs 5 7(1) (1984)- which of course begs the question of which interests arc 'legally protected'. 67 1 Ibid. at 42ff. However, Lord Osborne incorrectly described this conception of harm as requiring "aiteration to a pre-existing condition" thereby confusing the so-called "pre-injury state" with the othenvise condition of harm of a person affecting conception of harm. It is not the lack of a prior injury state chat rnakes the 'wrongful life' action non-compensable, but the fact that 'but for' the wrong, the child would not have been born. iegal distinctions created by a 'person decting' conception of hann in the interpretation of a statutory scheme for compensating the victims of crime. The whole purpose of creating a statutory Scheme for compensating the victims of crime is arguably to avoid the arbitrary 1ega.i distinctions created by tort law in a realm where justice requires fair compensation for dl.

Others have sought to rely on a 'person affecting' conception of harm to explain the distinction between 'wronboful life' actions and ordinary prenatai injury cases without reaUy understanding the nature of the distinction. Curïously, the English Law Commission, in its Repor? on Injuries to Unborn Children sought to make an unsustainable distinction between claims in which the defendant's negiïgence causes the child's conception and cIaims involving a negligent failure to prevent the birth of an aiready conceived child? The Law Commission said, "[tlhere is, we think, a difference between a neghgent faiiure to prevent the birth of an already conceived child and negiigence which actually causes the intercourse which results in conception. .674 The Commission said that "[iln the latter case we think that the child shouId be able to claim damages and that they should be assessed by cornparison with the child as he would have been had he not suffered fiom the disability. 99 .675

However, the Commission oftered no explanation for this distinction, and contrary to wbat they may have thought, it does not correspond to the distinction made by a 'person affecting' conception of harm. Both cases are in fact 'wrongful iïfe' cases because in both cases, the child could not have existed without congenital disabiiity 'but for' the defendant's wrong. The only difference between the cases is that the latter case involves a negligent omission while the former involves a positive act. As we have seen in the previous Chapter, the distinction between acts and omissions is not a legitimate basis for distinguishing between liability in 'wrongful Iife' actions any more than it is in other areas of tort law.

672 Ibid. at para 99. Repon On Injuries ro Unhorn Children. supra note 36 at pm9 1. 674 Ibid.

675 Ibid. It is possible that the Law Commission was trying to pick up on a distinction Tedeschi refers to in his article between what are sometimes confûsingiy cailed identity-determining rvrongs and identity-preserving wr~n~s.~'~Tedeschi refers to a German Supreme Court case in which a ctiild born congenitaiiy disabled as a result of the negligent transmission of syphilis from bis biological father was unable to sue because he was injured by the very act of intercourse that resulted in his conception. However, the Court referred to the fact that the child might conceivably have had an action against his biological father if the negligent transmission of syphilis to the chiid's mother had occurred independently of the child's conception,

According to Tedeschi, "when a person fathers a chiid and infects it with a disease by one and the same act, then either the semen was already infected when it came in contact with the ova, so that the new entity created is diseased from its inception (and this is the tnie meaning of congenital disease), or the single act results in paternity and in the infection of the mother, which will be transmitted from her to the The defendant's wrongful conduct in the former case can be charactensed as identity-preserving in the sense that it did not alter this particdar child's identity as a disabled child because 'but for' the wrong, she could oniy have been born disabled or not at dl. The defendant's conduct in the latter case is identity detemtining because 'but for' the wrong, this particular child could have ken born 'healthy' or 'whole' .

The distinction between identiry-determining and identity-preserving wrongs, therefore, is just another way of making the distinction made by a 'person affecting' conception of harm. It is a rnisinterpretation of the 'person affecting' conception of harm that lead the Law Commission to conclude that the distinction is really between wrongs that result in the child's conception and wrongs that result in the child's birth. On a 'person affecting' conception of hm, both wrongs wilI be immune from liability if 'but for' the wrong, the child would not have been bom. In both cases, the defendant's wrong was 'person affecting'

676 Tedeschi. supra note 1 14 at 513 n. 1,530,532. The Law Commission referred elsewhere in its report to Tedeschi's article. Deputy Presidenr Ben-Porat of the Israeli Supreme Court also relies on this distinction in her judgement: Zeirzov, supra note 1 at 877-78. in that the particular plainriffnever had the chance to be boni 'normal' or 'whole', even if a dcfferent child might have.

Derek Parfit gives a comrnonly cited hypothetical example of the application of a 'person affecting' conception of hami in the context of prenatal harming? He describes a woman who despite the warning of her physician, conceives a child while suffering from a transmissible disease rather than waiting a few months until der the disease bas ken ~eated.~'~As a result, a chiid is bom with minor congenital abnormalities. On a 'person affecting' conception of harm, the child in Parfit's example has not been hanned by the mothers wilful refusal to wait a few months before conceiving the child. This is because the child could not claim that had her mother waited, she would have been bom healthy, only that if she had waited, a dcyerent healthy chiid would have been born. If Parfit's example is varied slightly so that the tortfeasor is the physician who, Say negligently fails to advise the mother of the risk of conceiving a child while infected with Gerrnan measles, the case becomes a 'wron,oful life7 case.

Accordingly, a 'person affecting' conception of harm impticitly requires, at least in the context of prenatd and preconception torts, that the particuiar plaintiff must have had the potential, opportunity or chance to be bom free from injury 'but for' the defendant's wrong. It is not sufficient, at lest according to Tedeschi and the majority of the Courts that have considered the question, that 'but for' the wrong, the chiid would not have been bom, even where the disability is so bad that her impaired life was not worth living. Because the child in a 'wron,@l life' action exists oniy with disability or disease or not ar all, she has not been 'harmed' by the defendant's wrongM

677 Ibid. at 532.

67a Derek Partit. Ethics & Poputarion. supra note 6 19- 679 Ibid. Derek Parfit also provides an example of a 14 year old girl who decides to have a baby. 680 Derek Parfit calls this dilemma created by a 'person affecting' conception of hmas the 'Non-Identity Problem': Derck Parfit, Reasons and Persons, (Oxford: Clarendon Press, 1984) at c. 16. To the extent that Anglo-American courts have relied on the formalistic requirements of tort law to reject the child's cause of action for 'wronE&i Me', then, they have irnplicitly incorporated a 'person affecting' conception of hminto Angio-American tort law. The next section will briefly examine the implications of this 'person affecting' conception of harm in light of current developments in reproductive technology as part of the effort to determine whether such a distinction is justified.

4.2 The Implications of a 'Person A€fecting9Conception of Harm: Arbitrary Distinctions & Unjust Limitations

A 'person affecting' conception of hmmakes distinctions in tort law that are seemingly arbitrary and unfk between those wrongs, which are cornpensable, and those, which are not. So, for example, in the context of 'wrongfid life' actions, a 'person affecting' conception of creates a distinction between wrongs that fail to avert a naturd disease process, and those that, because they cannot avert the disease process itself, merely faii to avert the child's conceprian and/ or birth. Only the former type of wrong is cornpensable because it is only with the availability of some treatment or cure, that the chiid could Say that 'but for' the wrong, she might have been born 'healthy' or 'whole'. Elaborating on the distinction, the California Suprerne Court in Tkrpin, said that "[tlhe basic fdacy of the Cürlender analysis is that it ignores the essentiai nature of the defendant's aileged wrong and obscures a critical difference between wron,aful life actions and the ordinary prenatai injury cases. 7, .681

The Court said that said that in a 'wrongful Life' action, "the obvious tragic fact is that [the] plaintiff never had a chance 'to be born as a whofe, functional human being without total deafness'; if [the] defendants had performed their jobs properly; she would not have ken born with hearing intact, but - according to the comptaint - would not have been born at a~l.?7.682 However, the Court observed in a footnote that the outcorne of the case would have been different if medical knowledge were such that a foetus could be treated prior to bi.to

68 1 Trrrpiti, supra note 9 at 96 1 - 682 Ibid. cure or olfeviare the hereditary defect in question.m However, because Joy's cornplaint did not allege the availability of any such treatment for her condition, she had no right of redress against the defendant. In this way, as new treatments are developed for congenital disease, "today's 'wron,aful life' actions will then become tomorrow's prenatal injury clallns. 99 .685

The upshot of this distinction, therefore, is that where there is no fieutment or cure that the defendant could have administered pre-natally in order to hait the disease process, the defendant will escape liability for his wrong aitogether. So, a child born with congenital rubella syndrome as a result of the defendant's neagent failure to treat her mother with gamma gobulin, such as in Sylvia v. Gobeille, has an action because she had the chance to be boni 'whole'. By contrast, a child bom with the same congenital disease as a result of the defendant's negligent failure ta advise her parents of the availability of abortion, such as in McKay, has none because there was no available 'medical treatment' that could halted the disease process.

Yet, in both cases, the child was boni with congenital rubella syndrome as an avoidable result of the defendant's wrong. Arguably, it is in cases such as McKq, in which a child is born with severe and untrearable congenitai disease, that the defendant should be held to the strictest standards of care. For in these cases, the only way to spare the child frorn such a fate would be to ensure that the parents had the opporninity to avoid the child's conception and/ or birth.

Accordingly, under a 'person affecting' conception of hmin cases involving negligent genetic counselling, liability depends solely on the availability of some treannent or cure, rather than on the careful communication of information and advice. In this way, the negligent failure to wam of the rkk of congenital disease that could have been avoided by abortion the child's conception or birth is effectively subordinated in a hierarchy of legal wrongs to the negligent failure to advise of the availability of some treatrnent or cure. On

683 lbid. at 96 1, n.8. 681 lbid. one view at least, this reflects a bias of the legal systern towards treamtent and cure rather than infonned consent and respect for the person, Alternatively, or in addition, it reflects a bias towards curing already diseased people rather than uvoiding disease in future generations.

The fine distinctions created by a 'person aecting' conception of harm with respect to pre- conception wrongs can be illustrated in the contemporary context of fertility ueatment. Consider for example, the distinction created by a 'person affecting' conception of hm between congenital disability resulting from the negligent selection of an 'already defective' embryo and the negligent storage or handling of an 'otherwise healthy' embryo. The bhh of a disabled child would not be compensable in the former scenario whereas it would be in the latter. In the case of the negligent selection of an 'already darnaged' embryo, the child's disability is pre-existing, such that the defendant's wrong is identify preserving.

By contrast, in the case of the negligent srorage or handling of an 'otherwise healthy' embryo, the child's existence with congenital disability arises directly fiom the defendant's wrong, which is idenriry determining. Yet, from the perspective of the disabled child, the distinction seems arbitrary and un fair. Even from the defendant's perspective, the distinction is difficult to justi@ where the defendant was equally blumeworrhy or atfault.

Kennedy and Gmbb have noted this anomaly in the context of new section 1A of the English legislation, which purports to allow a congenitally disabled child to sue for the negligent 'selection', 'keeping' or 'use' of embryos, that resulted in her disabilitY.- However, the result of section l(1) of the Congenital Disabiliries Act, which curiously adopts a 'person affecting' conception of hmby restricting recovery to actions where the child would "otherwise have been bom heaithy", effectively bars a clah in the case of the negligent 'selection' of a defective embryo? As with al1 'wron,gful life' cases, it could always be

Giescn. supra note 2 10 at 90 para 126. 686 Kennedy & Gmbb supra note 4 1 at 954. 687 As with Pascoe, discussed at supra notes 665ff. & accornpanying text, it seems suange for the Legislature to consider itself bound by the formalistic requirements of tort law. argued that 'but for' the neaigent selection of a defective embryo, a diferent non-defective embryo would have been selected and a heaithy child born. However, on a 'person a.f%ecting9 conception of harrn, the child that would have been bom 'heaithy' or 'whole' would not have been the sanze chifd who was wronged by the defendant's negligence-

This problem is compiïcated in the context of pre-conception wrongs by the uncertainty of w hen existence and/ or identity or personhood begins. At w hat point is a person's identity as a disabled person established such that the defendant's negligence is identity preserving? If the negligent selection of an 'already defective' embryo is idenw-preserving such that 'but for' the wrong, a different chdd would have ken boni, can the same be said for the negligent selection of a defective sperm, ovum or garnete? What of the negligent screening of defective sperm as part of in vitro fertilisation in circumstances where it could have ken genetically aitered before being combined with the ovum to produce a normal child? Would the child that would have been born 'whole' 'but for' the wrong, be the sarne child as the child originated from the defective sperm?

Jeff McMahan, who considers this scenario, says that "it is not absurd to suppose that the cognitively normal child who would have existed had the sperm ken aitered would have been a d~rerentchild from the actual retarded child - or, as 1 will Say, that the genetic alteration would have been identiry-determining with respect to the child.".- However, these are obviously fine distinctions that a 'person affecting' conception of hami makes. How radical rnust the alteration to the defective sperm be in order for it to be identit-y detemining? Should the availability of a legal remedy depend on such fine distinctions? Ironically, a 'person affecting' conception of harm, raising as it does the difficult ethical question of when personhood begins, effectively imports new metaphysical conundrums into the law, which the Courts so avidly sought to avoid.

tas Jeff McMahan, supra note 63 1 at 209. Jeff McMahan conctudes that "the most plausible*' supposition is that the al tcration to a defective sperm is identiry-preservirrg with respect to the sperrn and organism, but identity- deremritrirrg with respect &O the self or person: lbid at 210. Furthermore, the distinction between idenrisr-detennining and identity-preserving wrongs made by a 'person affecting' conception of hann implicitiy discriminates against children who are genetically predisposed to congenital disability or disease, thereby importing a kind of genetic determinism into tort law. A child who is geneticdy predisposed to disability or disease or for whom no generdy available medical cure is available will have no recourse against a defendant physician for negligence if the defendant could not have made this child 'normal7 or 'whole'. This would appear to be contrary to notions of distributive justice and commrtnitarian ethics, pursuant to which all people are not only treated equal bejiore the lmv, but have the ri@ to an equal mrt in ive.

Another contemporary scenario in which a 'person affecting' conception of harm would apparently make arbitrary distinctions is the negligent failure of a defendant physician to wam a pregnant woman undergoing fertility treatrnent of the increased nsk of birth defects if she proceeds with a pregnancy carrying mulriple foetus. This scenario is iikely to become more cornmon with the increased availability of fertility drugs, which induce women to produce more than one ovum in a single cycle and the practice of some fertility clinics of irnplanting more than one embryo in in vitro fertilisation to increase their success rates.a9 Statistics show that the vast majority of multiple births of three babies or more are born to women undergoing fertility treatment?* Furthemore, multiple pregnancies carry an increased risk of premature birth, and attendant defects including cerebral haemorrhage, blindness and lung c~rn~lications?~

On a 'person affecting' conception of hm,the defendant might not be liable to a disabled child for the negligent failure to advise its mother of the risk of birth defects from multiple pregnancies. This is because the child would probably have difficulty in showing, on the balance of probabilities, that if her mother had been properly wamed, she wouid have selectively reduced the number of foetus' she was canying, of which the plaintiff would nof

689 Philip G. Peters. "Harming Future Persons: Obligations to the Children of Reproductive Technology" 8 S. Cal. Interdis. LJ. 375 at 376.

6" Ibid. 69 1 Ibid. at 377. have been one, In this respect, it is worth noting that the situation might be different in the selective reduction of, Say 4 foetus' to 2, as opposed to 4 foetus' to 1, as the probabilities of the child being born heaithy 'but for' the wrong, are perhaps greater in the latter case? However, the detennination of this question wiii ultimately twn on expert medical evidence.

Another possible scenario where the distinctions made by a 'person affecting' conception of harm rnight have seemingly arbitrary and unjust implications is in the emerging field of genetic engineering and, more specifically, human cloning, Since the cloning of 'Dolly' the sheep by a technique known as somatic celi nuclear transfer in Scotland in 1997, there has been a furore over the legal and ethical implications of human c~onin~.~~~Before the Curore began, Feinberg described a hypothetical case of an evit scientist who deliberately creates, by chemically altered sperm and ovum, an individual with gross congenitai deformities!* On a 'person affecting' conception of harm, the child bom would have no cause of action against the scientist because she never had an opportunity to be born other than as a diseased individual. in the words of Haavi Morreim, "[elach exists as this handicapped person or not at al^.^.^^^

Similarly, imagine, as does Jeff McMahan, that a couple, who happen to be geneticists, alter a single sperm in order to ensure a slighdy handicapped child is born, for example, to ensure the child remains dependant upon them!% On a 'person afCecting7 conception of hm,the child would have no recourse as the child never had the chance to be bom 'healthy'. While these examples might seem far-fet~hed:~ and are likely to be prohibited in many

692 IL may be intcresting to consider the possibIe application of the so-called 'loss of chance' cases to this scenario. 693 See ge~eral1y, Cloriing Human Beings: Repon and Recommendarions of the National Bioerhics Advisoy Conlmissiort 3-8 ( 1997) [Hereinafter, NBAC Repon]. Sec also EmiIy Marden, "Book Review: A Critique of Cloning Human Beings: Report and Recommzndations of the National Bioethics Advisory Commission" (1998) 6 N.Y.U. Environmental LJ. 674. 69.1 Feinberg, Ham to Others, supra note 621 at 73. See also Haavi Morreim, supra note 622 at 149.

695 Ibid. 6% Jeff McMahan, supra note 63 1 at 214. 6W These examples are also distinguishable from the 'usuai' 'wrongful life' case in that the defendant's conduct is deliberare. However, for the purposes of this andysis. this distinction is nor relevant. jurisdictions by legislation with respect to human ~lonin~~~and the implantation of multiple embryos at one they nevertheless dernonstrate the real and potentialiy restrictive implications of a 'person affecting' conception of hmin civil law.

It does not seem nght that the mad scienûst should escape liability for the child's fate. Nor that a spem bank that negligentiy failed to screen its donors should be immune fiom liabiiity when a child is bom with the HIV virus.'00 Yet, on a 'person affecting' conception of harm, no civil liability attaches, as the sperrn bank's negiigence was identiîy preserving or 'person affecting' vis a vis the chilci As even Tedeschi acknowledges, with respect to the case of the negiigent transmission by the father to his child of syphilis by the act of intercourse, "the distinction is felt to be unjustified. 9' .701 Furthermore, Peters argues that by focusing on individual victims, conventionai legai analysis "overlooks the possibility that persons using reproductive technology could reduce future injuries by conceiving other children who would suffer less. 9, .702

It was argued in the previous Chapter that Anglo-American Courts considering the 'wrongful life' cause of action could make a conceptuai distinction between the defendant's wrong in so far as it causes the child's existence and the defendant's wrong in so far as it causes the child's congenital disabilities. In this way, the so-called 'Non-Identity' problem caused by a 'person affecting' conception of hami could be avoided. As it Nrns out, this is the type of conceptual distinction the Courts are wiiling to make in other contexts. For example, in the

In the United States. the National Bioethics Advisory Commission (NBAC) has recently recommended that a 3 to 5 year moratorium be placed on human cloning: Philip G. Peters, supra note 689. 699 E.g. The United Kingdom has placed a maximum Iimit of 3 embryos that may be transplanted at any one tirne for fertiIity treatment: Philip G. Peters, Jr., szrpra note 689 at 377 n.10.

700 The average median survival time for children infected witb the HIV virus is about 38 months from the time the virus is diagnosed: Steinbeck & McClamrock, supra note 629 at 396. "' Tedeschi. supra note 1 14 at 530. The distinction between the defendant as rhirdpany rorrfeasor and as parent is irrelevant for the purposes of this distinction,

'Oz Philip G. Peten. Ir.. supra note 689 at 375. See also Philip G. Peters Jr.. "RethinkngWrongful Life: Bridging the Boundary Between Tort and Family Law'' (1992) 67 Tul. L. Rev. 397. This is also the view of Jeff McMahan who argues that the comparative dimension of the case, namely, that the negligent physician causes a disabled child to exist rarher than a different normal child, is "an essential part of the explanation of why it is [intuitively] objectionable to cause the disabled child to exist.": Jeff McMahan, supra note 63 1 at 226. fire rescue case referred to by the Deputy President of the Israeli Supreme Court in Zeimv, the rescuer is liable for the injuries to the victim he saves notwithstanding that the negligent act that injured the plaintiff, was part of the rescue that saved her life. Accordingly, the rescuer's negligence in injuring the victim is conceptually distinct fiom the act of rescue that saved the victim's life notwithstanding that on a strictly Iogical analysis, 'but for' the rescue, the plaintiff wouid not have ken saved?03

Similarly, in Cherry v. orsm man:^ the British Columbia Court of Appeal was prepared to distinguish between the defendant's duty to the mother to perform the abortion properly and the duty to the child not to injure it, that it was unwillinp to do in a 'wrongful life' case. And yet, on a strict logical account, had the abortion in Cherry been properly performed, the child would not have been born. The Canadian Court distinguished the chiid's claim in Cherry from other 'wrongful Iife' cases on the basis that there was no legal obligation on the defendant in a 'wrongful life' case to terminate the foetus' 1ife.m While the conclusion in Cherv seems rïght, it is difficult to see how the distinction can be made in this case while not in a 'wrongful life' case. Why should a congenitally disabled child have legal recourse when the negligence was in the pe@omance of an aboriion but not when it was the failure ro advise of the risk of disability or disease? Once aga*, the distinction between acts and omissions is not sufficient legal justification for the exclusion of liability in the one case but not the other.

Accordingly, if a 'person affecting' conception of harm is the only logical legal explanation for the exclusion of liability in 'wrongful life' actions, it is not necessarily a moral or justifiable one. Even Tedeschi acknowledges that "notwithstanding its logical foundations",

However. he stops short of devetoping an alternative account of hmthat is not so restricted by a 'person affccting* conception of harrn.

703 The fire rescue case, however, may not be a 'perfect' analogy for 'wrongful life' cases, as it arguably invoivcs the justification of a Iesser harm to avoid a greater hann. or for the greater good of rescue, that is not present in a 'wrongful iife' case, where the harm of allowing a person to be born with congenital disease is not justiîied by virtue of the fact that the child's birth was a benefit: See Shiffi-in, supra note 647 at 126, 134ff. 7M Sce discussion of case at supra notes 378 & accompanying text.

'O5 C/~et-qv. Borsman. supra note 378 & accornpanying text. a 'person affecting' conception of hmleaves "acertain feeiing of perplexity"?w It could aIso be said that the implications of a 'person affecting' conception of harm in individual cases "defies common sense'7 , 707 6 'threatens a number of common sense mord beliefs 9,708 or results in arbitrary distinctions and unjust Iimïtations.

4.3 Congenital Disability, Medical NegUgence & the Limits of LiabWty in Anglo-American Tort Law: A Job for the Legislature?

If we cannot say that the child in each of the scenarios discussed in the above sections of this Chapter has been hanned, we cannot account for either the chiid's sflering or for the moral blamervorthiness of the defendant, The result would appear to be that the refusal by Anglo- Arnerican Courts to reco,onise the legitimacy of a child's cause of action for 'wrongful life' undermines the commonly avowed purposes of ton law of compensation and deterren~e.~~ Furthemore, shifting the emotional and economic losses suffered by the child in a 'wrongful life' action to the defendant would arguably uphold the conventional 'fault' based approach to determining iiability in tort law by 'righting' a wrong. It would also support notions of distributive justice by shifting the loss to the party who, by virtue of the availability of liability insurance, is in the best position to pay.710

Tedeschi says that "[s]entirnent, and ultimateIy juridical understanding, react to such logic [of a person aflecting conception of harm] by a plea for other bases. 97 .711 Yet, the options available within tort law for reco,onising a child's claim for 'wron,ofuI life' are limited unless

'O6 Tcdeschi. supra note 1 14 at 530. See also, Derek Parfit, Reasons and Persons, supra note 680 at 370-7 1. cited in McMahan. supra note 63 1 at 2 18, concluding chat the area of morality "concerned with beneficence and human well-king .. . cannot be explained in person affecting terms.":

'O7 Philip G. Peters. Ir., "Harming Future Persons", supra note 689 at 375. ?OS Jeff McMahan. supra note 63 1 at 216. The NBAC Repon even acknowtedged that in the context of human cloning, a person aaecring conception of hmcouId lead to "absurd resutts": Cited in Philip G. Peiers, Jr.. "Harming Future Persons", supra note 689 at 379.

'O9 See funhcr, supra notes 523 & 524 & accompanying text.

''O For the purposes of this argument, the notion of 'enterprise responsibility', which might account for a slightly different approach to determining liability in the United States, is assumed. "' Tedeschi, supra note 1 14 at 530. one is prepared to distort either the facnial basis of the claim or the principles of tort law themselves?' It has been argued in the previous Chapter that either of these paths could be justified in 'wrongfid life' cases. Accordingly, the child's injrtry in a 'wron,@tl Life' action could be conceptualised as her congenital disability apart from ber conception and I or biah notwithstandinp that on a strict 'logical' approach her disability is inseparable from her existence. Afternatively, or in addition, the benchmark for rneasuring the child's cornpensable loss in a 'wronboful life' action could be that of a 'healthy life', notwithstanding that the child never had the chance to be born free from disabiiity or disease.

However, Anglo-American Courts are, by and large, either unwiiiing or unable to adopt any of these approaches. The result is apparently that not al1 rvrongs wili attract le@ liability and not al1 hanns will be legaiiy compensabie. Furthemore, or alternatively, a legal conception of harm is not necessariiy the same as a moral conception of hm. Obviously, a moral conception of harm need not be restricted in the same way that a lepl conception of hmmight be. Accordingly, John Stuart Mill recognised the idea that bringing a child into the worid "without a fair prospect of being able, not only to provide food for its body but instruction for its mind, is a moral crime, both against the unfortunate offspring and against society. t, .713 Some cornmentators, such as Laura Purdy, argue that knowingly bringing a chiId into existence that will experience a serious and untreatable disease such as Huntington's Disease is a moral harm to the child?14

712 Other possible basis for bringing an action on behalf of the child are briefly considered below at notes 757ff & accompanying text.

'13 J.S. Mill. On Liberty, cited in Harris. .The Wrong of Wrongful Life", supra note 3 at 90. 715 Laura M. Purdy, "Genetic Diseases: Can Having Children Be Immoral?" in John D. Arras & Nancy K. Rhoden, eds., Ethical Issues in Modem Medicine, 3'7'ed. (Mountain View: Mayfield Publishing, 1989), 3 1 1-17; "Loving Future People" in Joan Callahan, ed., Reproduction. Ethics atuf rhe Law (Bloomington: Indianna University Press, 1995) 300-33 1. Cf: Adrienne Asch, Tan Aborting Imperfect Children Be Immoral?" in Erhical Issues in Modem Medicine, ibid. at 386. Haavi Morreim also rejects a non-persan affecting principle of hmin favour a conception, which would recognise that the conception or birth of a child with congenital discase rnay constitute a morally relevant harm: Haavi Morreim, supra note 622 at 153. According to Wei~b,a corrective justice conception of tort law can be understood as the correlatively of doing and s~lffering On this approach, the two most salient features of tort law are fmtly, the bipolar relationship that links plaintiff and defendant and secondly the doctrinal centrality of ca~sation~'~The fust doctrine is said to prevent Liabilïty for the plaintiff s suffenng apart from the defendant's conduct, whiie the second prevents liability for the defendant's conduct apm from its consepences for the s~#erer.~'' Under a corrective justice conception of tort law at its most rudirnentary level, therefore, it is not that the defendant's conduct in a 'wronboful iife' action is not wrongful or even that the child has suffered no harm- Rather, it is that the wrong was not tu the child or, probably more accuntely, the child's disabiiity was not directly amibutable to the defendant's wrong. The reasoning of the vast majority of Anglo-Amencan courts that have rejected the 'wrongful Iife' cause of action cm be largely explained, although not necessarily justified, according to this 'formalistic' approach to tort law.

On a 'formalistic' approach to tort law, therefore, 'cornpensable loss' or 'hm' is defined by reference to the nature of the defendant's wrong. The defendant must have caused the plaintiff s 'loss' and this only occurs if and so far as the particrtlar plaintlflis worse off as a result of the defendant's wrong than she otherwise would have been 'but for' the ~ron~.'~' The essence of the theory of cause in tort law is the production of a d~rerentresult, which is meaningless without an alternative hypothetical standard from which to compare it.'19

In other words, if the child's genetic predisposition is a non-wrongfiil suflcient cause of her birth with congenital disabilities, she suffered no 'cornpensable loss' as a result of the de fendant's wrong because, short of non-existence, she would have suffered from it

7'S E.g. Ernest, J. Weinrib. The Idea of Privare Law, supra note 477 at 73, 145. 1 have chosen to refer to Weinrib's conception of corrective justice, although there are others.

'16 '16 ibid. 717 Weinrib. The ldea of Privare Law, supra note 477 at 153: "Without injury at the actor's hands, there is no sufferer to whom the actor is liable. And without the causal connection of suffering to the wrongful creation of risk, there is no actor responsible for the suffering and thus no one from whom, as a matter of corrective justice, the suffercr can recover.".

''13 Cooper-Stephenson, supra note 469 at 749. 719 Ibid. at 749. anyway.720 According to Cooper-Stephenson, where there are two sufficient causes, but only one is wron~~il,"there is no cornpensable loss .. . because non-cornpensable suffcient causes are simply part of the 'backcloth' of 'normal' events or everyday circumstance that actually is or would have been the piaintiff s life9, .721 This formalistic approach to determining the justiciability of 'wrongfui iïfe' actions is familiar because it seems to explain, although not necessarily justify, the reasoning of the majority of Anglo-American courts that have dismissed the action?

The result of this formalistic approach to tort law is that the loss suffered by a chiid with congenital disease as an avoidable result of the defendant's negligent genetic counselling will lie where it falls, with the unhappy child upon whom it falls. Some might try to justiQ this result according to traditional tort principles, for example, that it would be an invasion of the defendant's liberty interest to burden him with the loss without clear and unequivocal proof that the defendant's wrong caused the chdd's disabilities. However, this would be to ignore the me Limits of liability in Anglo-Amencan tort law, or more offensive stiii, to pretend that tort law somehow has a clah over common sense notions of 'justice' and 'morality' .

The bias inherent in a formalistic conception of causation in negligence law is that for so long as congenital disabiliry is perceived have its genesis in genetic predisposition, rather than in human error, it will not be a 'cornpensable loss' "unless a cornparison is made with a person without such genes. 9' .723 Anglo-Arnerican Courts do not seem ready or wiliing to make such a cornparison. in this way, therefore, the law reflects a kind of genetic detemzinism or assumption that not aLl persons are entitled to an equal start in ive.

'20 Ibid. 721 Cooper-Stephenson, supra note 469 at 752,79 1. 72 E-g. The Lininger Court insisted that "[tlo disregard the requirement that a plaintiff prove that he has been injured would carry tort law welI beyond its proper, principled boundariesWand that "[albsent any demonsuable injury to the phintiff, there is no burden for which a third party rnay be held to answer.": Lininger, supra note 9 at 1210. xs Cooper-Stepheson. supra note 469 at 790. Yet none of this cornes as a surprise in a legal system replete with fine and, in many ways, arbitrary distinctions. Most judges and scholars of tort law readily acknowledge the limits of liability in Anglo-American toa law, in particular in the context of compensating the victims of illness and disea~e.~~Most fundamentaMy, the requirement of proving fa& on the part of the defendant "screens out the majority of victims who suffer personal injury let alone those who are stnick with disease. ,, .725 The additional restrictions on recovery imposed by a 'person afTectingTconception of harm where the plaintiff was born congenitaily disabled as an avoidable result of the defendant's negligence, is just another such distinction?

AccordingIy, even if it were accepted that a child suffers legal hm by king born with, say, Tay Sachs Disease, the child would stiii be unsuccessful in ber daim if, for example, she could not show that her parents would have aborted her had they ken properly advised. Furthermore, the enquiry into Iiability, which does not even mise in the 'wronagfd Me' cases, where onIy the prelirninary issue of justiciability is in issue, is in practice cumbersome and expensive." Apart from the usual pitfalls of establishicg causation? and even assuming an accurate diagnosis of the disease, the aetiology of the congenital disability in question is ofien extrernely difficult to prove.729

In Profltt v. Barrolo, the Michigan Court of Appeals had no illusions about the practical impIications of its decision to deny the child's 'wrongfbl Me' daim, while aiiowing the parents 'wrona@ birth' acti~n.'~The Court acknowledged that the net economic effect of

724 E-g. Cooper-Stephenson, ibid. at 12- 15. See also J. Stapleton. Disease and the Compensariotz Debare (Oxford, 1986): B. Feldthusen, "if This is Torts, Negligence Must be Dead". cited in K. Cooper-Stephenson, ibid: "we rnust accept chat as a matter of fact, negligence Iaw is relatively useless at accornplishing anything of socid value where negtigentlycaused illness is concemed". For a more harsh critique, see Richard t. Abel, supra note 492 at 102: 'Tort law cannot adequately compensate needy victims because liability is a function of fault rather than need.".

725 Cooper-S tephenson, ibid. at 12, 7-22 Ibid. m~bid.at 13. These might include diificulty in recollection of events due to delay: ibid. 729 Ibid at 14: "Disablement is typicalIy the product of multiple causes, which then necessitates a decision on which causes are significant for purposes of compensation.".

Proflu V. Bnnolo, supra note 263 at 243. their decision to reject Liability was to place responsibility for the physician's neagent failure to provide proper information and advice on the State "which wiil have to care for the child (and the adult, if the child lives) far into the hture in the more aggravated cases where other hinds are unavailable."?' If this was not the optimum resulf the Court considereci, that "the conflicting economic and moral interests are best resolved in the ~egislature.".~

It may well be, as many of the Courts have suggested, that Parliament, which is unconstrained by the le@ niceties of tort law, would be better p1aced to deal with the moral and political issues surrounding 'wrongfbl Life' actions. Parliament is in the unique position of being able to introduce a no-fault compensation scheme for personal injury cases that would award compensation based purely on need rather than hs,and irrespective of fa~lt?~ Furthemore, Parliament has the political mandate to reflect the sentiment of the people.

Calls for no-fault statutory compensation schemes have ken strongest in cases of personai injury, illness and disease, where even the complete absence of fault is sometimes thought to no longer provide a sufficient justification to deny recovery altogether. A statutory no-fault compensation system for people who suffer from congenital disease wodd not be constrained by the distinctions made by a 'person afEecting' conception of harm in tort Iaw, which requires a relative assessrnent of the child's otherwise condition 'but for' the defendant's wr~n~.'~

Under a statutory compensation scheme, there would be no artificial attempt to restore the plaintiff to the position she would have been in 'but for' the wrong, only to provide a measure of financial assistance based on need that is sufficient to provide her with an

733 Cooper-Stephenson, supra note 469 at 15ff. 734 Philip G. Peters Jr., for instance, proposes a mode1 to guide legisiatures in regulating reproductive tcchnology relating to future persons that is based on a utilitarian non-person affecting conception of harm: Philip G. Peters, Jr., "Harrning Future Persons", supra note 689 at 385ff. Cooper-Stephenson, supra note 469 at 7-8. adeqrare exi~tence.~It is ofien now acknowledged that, for a multitude of reasons, "the 'what if, loss-compensation focus of the tort system is very much misptaced in modern s~ciet~.".~~McMahan, for example, concludes that a congenitaily disabled child rnay deserve compensation through social insurance rnechanisms or redistribution based on distributive justice, sirngly for king badly ofl that a system of tort liabïiity based on fault, and in particular a 'person affecting' conception of hm,is unable to address?

No-fault compensation schemes represent distributive justice in the sense that rather than focussing on correcting an isolated wrongful act of the defendant, they detennine an allocation of societai resources to disabled people based on needM The purpose of no-fault compensation schemes is "to make compensation more widely and more swiftly a~ailable".'~~Under such a scheme, the wrongful conduct of the defendant ceases to be relevant in determining the eligibility of a claimant and the focus is on the god of compensation rather than deterrence or p~nishrnent.'~~Studies show that no-fault schemes may be cheaper to run than the system of civil liability?41 Any no-fault scheme would naturally need to define the boundaries of compensation, including the type of disabilities for which compensation is available and the amount. Rernarkably, the only Western country that has instituted a comprehensive no-fault scherne for personal injury, being New Zealand, excludes from the class of eligible claimants, persons who suffer injury due to disabiliv or di~ease.'~'

73S Cooper Srephenson, Ibid. 736 Ibid. at 8. The main reason given is because of the discriminatory aspect of restoring the party to the quality of lifc they would have had but for the wrong in terms of assessments of 105s of earning capacity, given the very different financial positions of most accident victims: E.g. See Richard L, Abel, supra note 492 at 102. 737 McMahan, supra note 63 1 at 232. 738 Ibid. at 18. According to Ken Cooper-Stephenson, the retention of ton damages for serious cases rnay help to keep a no-fault system honest: S~cpranote 469 at 19-20.

739 Ibid.

'40 Ibid. Ibid. at 20-22. 742 See generally, John F. Keelcr, "Social Insumce, Disability and Personal Injury: A Reuospective View" ( 1994) 44 U.T.L.J- 275 at 278, A no-fault scheme has also been proposed, but not adopted, in Australia and in Canada, with respect to cases of medical mot: fbid. 18. Sec generaily, R Prichard, Liability and Compensation hi Health Care ( 199 1 ). However, it is ultimately a matter of political persuasion as to whether Anglo-American legislatures will adopt a statutory social insurance scheme that wiii cover congenitai disability and disease. This wiii depend in part upon the perception of whether congenital disease will be considered by Pariiament for the purposes of a statutory compensation scheme to constitute a cornpensable loss, depnvation or hmrather than merely part of a person's genetic constitrrtîon orfate. "The law has been left behind by the rapid advances of medical technology opening up a "gap between oId law and new medicine 19 .743

Perhaps the most disturbing aspect of the refusal by Ango-Amencan courts to recognise the vdidity of 'wrongfbl Iife' actions is the intuitive or 'common sense' belief that these plaintiff s are, more often than not, desenting of redress. The defendant's negligent failure to advise a couple of the risk of conceiving a child with, Say cystic fibro~is,'~in circumstances where the defendant holds himself out as an expert geneticist and knows that the couple wiU reZy on his advice in conceiving a chiid is clearly wrczngfui. Furthemore, the child who is subsequently born with cystic fibrosis ctearly suffers avoidable pecuniary and non-pecuniary loss that she would not have suffered if her parents &adnot conceived her, and Say adopted instead. h this sense, the 'wrongfid life' cause of action truly represents a modem day example of a wrong without a remedy?

It has been argued in this Thesis that many of the reasons given by Anglo-Arnerican courts for refusing to recognise a child's claim in a 'wrongful life' action are, on closer analysis, value-Iaden and flawed, Furthermore, the Courts have been inconsistent in their approach to 'wrongful life' actions, on the one hand, and 'wrongfbl birth' and 'wrone@l conception' cases, on the other hand- For example, the same Courts that have rejected public poky reasons as to the sanctity of human life as justification for disallowing 'wron,oful birth' actions, have continued to rely on these very same reasons for rejecting 'wrongful life' actions. There have also been inconsistencies as to the awarding of damages as between 'wrongful life' actions and 'wrongful birth' and 'wrongful conception' cases. Even in the few American cases where the Courts have allowed the 'wronefil life' action, they have made unsustainable distinctions between the award of general damages and special damages, which are not justified elsewhere in the law.

743 Lord Mustill in Biand. supm note 572 at 888. 74.4 Cystic fibrosis is an autosomal recessive genetic disease chat affects an individuai's respiratory, digestive and reproductive systems. It primarily affecrs Caucasians of northern European descent: Suzanne P. Tomlinson, supra note 34 at 552. An argument was made in support of recoagGhg a chiid's claim for 'wrone+l life' buiiding on ordinar): negligence principies that fonn the foundation of the child's right of action for neghgentiy inflicted prenatal injury. It was suggested that the legd basis of the child's daim could be conceptualised as a putative right of infonned consent pursuant to which the child has a right to have decisions made by her parents on her behalf. The defendant doctor who treats a pregnant woman or who advises a couple who want to have chiidren assumes responsibility both to the couple and to the unborn child and she relies on the doctor both for her own care and for the care of the unborn chilb7*

By failing to inform the chiid's parents of the risk of having a child with congenital disease, the parents were denied the opportunity to avoid the chitd's conception and/ or birth and the defendant breached his duty both to the parents and to the child. The fact that the child was not bom or even conceived at the the of the alleged wrong is not fatal to the child's claim. The prenatai injury cases discussed in the fmt Chapter show that the duty of care is a continuing duty that crystailises upon the birtii of the child with congenital disabilities.

To this extent, 'wrongfûl life' actions, at least in so far as they relate to negligent genetic counselling, are conceptually analogous to the medical cases on 'lack of informed consent' and, more particularly, to 'wronpful birth' cases as recently analysed by the Supreme Court of Canada in Arndt v. Smith. The bais of the child's daim is the same as the claim of a parent in a 'wrongful birth' action who sues for the physician for negligentiy failing to advise of the risk of her child being boni disabled. In these cases, the parents are compensated not for the notional breach of their autonomy or interests per se, but for the pecleniary and non-pecuniary losses that flow from the consequence of this denial of the right to decide.

It was suggested that the label of 'wron~life' is an unfortunate and misleacting description of the underlying bais of the child's claim because the child in tmth is not comptaining of

745 Even the Court in Zepeda in he first 'wrongful Iife' case to be decided, recognised that the defendant had by his conduct committed both a moral and a legal Lvrong: see supra note 225 & accompanying text. 746 Kennedy & Grubb, supra note 41 at 936. her conception or birth as an isolated event, but of her impaired life. Viewing the chiid's darnage in this way, it is not necessary to be preoccupied with the metaphysical conundrums of non-existence. or with the so-caiied 'Non-Identity' problem. The child's injuries are her birth with congenital disabiliîies rather than her existence per se and on a 'common sense' approach to causation, the defendant is responsibfe for the conditions, which resulted in her birth with such congeniral disabilities or disease. This was effectively the approach of Judges Barak and S. Levin in the landmark israeli case of Zeirzov-

The 'logico-legal' problem with this approach is that it would require the Court to overlook the fact that the child could not have been bom healthy or 'whole' 'but for' the wrong, for the purposes of detennining her injury and measuring her 'cornpensable loss' according to traditional tort principles. However, it is arguably not to the point that the child codd not have been bom without disease, because the child is not suing for the lost oppotïurziîy to be born 'healthy' or 'whole', but for the fact that she was born disabfed."" It was urged that the reality of the child's suffe~gand the medicai and other expenses uicurred as a result of the child's congenitd disabilities should be suffkient evidence of the existence of injury.

If a child suffers no injury by being born disabled, then what is the correct conceptuai basis for identifying the parents injury in having a disabled child or healthy, but unwanted, chiid in 'wron,aful birth' and 'wrongful conception' cases, respectively? Anglo-American courts have unequivocally rejected the argument that 'wrongfül birth' cases are intentional torts. Accordingly, the parents injury in having an unwanted or disabled child cmnot be the hurt of being denied the right to decide per se. They have aiso refrained from characterising the parents' damnge in a 'wrongfid birth' action as the 'lost opportunity' to avoid the child's conception and/ or birth. Herein lies the fundamentai contradiction of the Courts in allowing the parents action for 'wron,oful birth' and 'wrongful conception' but not the child's action for 'wrongful life'.748

7.87 In this respect, it is important not to confuse the 'loss of chance' cases with the case argued for by the infant in a 'wrongful life' case. But see funher bdow at note 760. 748 E-g. Peter Cain, The Anatomy of Torr Lotv (Oxford: Hart Pubiishing, 1997) al 67: "Somewhat inconsistently [with the refusal of Courts to recognise 'wrongful life' actions], the law is prepared to award parents in both It was xgued that various approaches could be used to measuring the child's 'compensable loss', including the standard approach of a heafthy life. The compensation principle of tort law is arguably only a hypothetical guide to assist in the assessment of damages and ought not be fatal to a determination of liability per se. The child's hypothetical 'otherwise' condition 'but for' the wrong is practicaily irrelevant to the child's clah given the reality that the child now exists and suffers as a result of the defendant's negligence. Accordingly, Judges Barak and S. Levin of the Israeli Supreme Court chose to adopt the benchmark of a 'healthy life' from which to assess the child's loss notwithstanding that 'but for' the defendant's wrong, the child would not have existed.

Other judges have suggested alternative 'workable' approaches to measuring the child's 'compensable loss' that would take into account the fact that the child never had the chance to be bom without defects or to a 'normal' life expectancy. For example, the Caiifornia Court of Appeal in Curlender preferred to restrict Shauna's damages to recovery for the pain and sufferïng to be endured during the lirnited life span available to a child afflicted with Tay Sachs disease and any special pecuniary loss resulting from the impaired ond dit ion."^ The Deputy President of the Israeli Supreme Court also adopted this approach to the assessment of the child's damages in a 'wrongful life' case in Zeitzov.

However, even accepting that it was not possible to classi@ a child's injury in a 'wrongful life' action without reference to her 'otherwise condition' of non-existence 'but for' the wrong, it was argued that it was nevertheless possible to mesure the child's 'compensable loss' in being born. The 'end of life' cases show that Anglo-American Courts are willing and able to compare an impaired life with non-existence. In these cases, far more rests on the outcome of the Court's decision because a human li$e is at stake rather than the mere availability of compensation. This was the approach adopted by two judges of the Israeli Supreme Court, Judges Ben-Porat and D. Levin, who held that a child bom with Hunter's

['wrongful birth' and 'wrongful conception' cases] damages representing the financial cost of bearing a disabled or unwanted child (as the case rnay be), and for associated non-pecuniary losses.". 749 Supra note 3 13 & accornpanying text. disease suffered 'cornpensable hm' by king born because his impaired Life was reasonably worse than if he had not ken boni. This is also the approach advocated by Feinberg and others.

However, Tedeschi, dong with the vast majority of Anglo-Amencan courts that have considered the question, have not accepted even this 'intemediate' or 'compromise' approach to the 'Non-Identity' problem, on the basis that it is simply not 'logically' possible to compare an impaired iife with never having been born. They maintain that a child suffers no kgally cognisable hum in being bom, no rnatter how badly impaireci, if there was never any chance to be born free from injury or disease. At any rate, such an approacti wodd be severely limited in its application, as it would apply only in to those cases where the disability is so severe that it could be said that an impaired Me was worse than not having been bom. No-one has yet been able to provide any guidelines or other basis for distinguishing between those disabilities which could be said to be so bad so as to make the child's life not worrh living and those, which could not.

And so we are back to where we started, with what has ken described by Tedeschi, Derek Parfit and others as a 'person affecting' conception of hmand the 'Non-Identity' problem. On a strict formalistic application of tort principles, the child has not suffered any legally cornpensable loss or harm by being born with congenital disease in circumstances where she never had an opportunity to be born born without injury or disease. Alternatively, and this is just another way of saying the same thing, there is no right not to be born, which has been violated by the defendant's wrong. And yet, even on this point, the Courts are inconsistent, as in several prenatal injury cases, it was held that a child has a right to begin lije with sortnd niind and body.'"

A good argument can be made that in rehsing to classi@ the child's claim in a 'wrongful life' action other than as a claim for being born, the Courts are actually making value judgements that are simply hidden behind what appears to be 'well established' legal principles. The more one examines the cases, the more evident it becomes that in applying the legai principles to the facts of a particular case, there is ample room for the surreptitious inclusion of value judgements. This is evident, for example, in the detennination by judges of which among numerous possible occurrences that are jointly suscient to result in the child's birth with congenitul diseuse, amount to a legal cause of that result, and which do not. Alternatively, in the determination of which rvrongs are cornpensable and which are not.

In the leading Commonwealth 'wronghl life' case of Mc*, Stephenson, L.J- concluded that, "[ilf public policy favoured the introduction of this novel cause of action", he 4'would not let the strict application of lo@c or the absence of precedent defeat it", but that "as it would be, in my judgement, against public policy for the courts to entertain claims like those which are the subject of this appeal" the claim would not lie."."' And yet, this is exactly what he, togeiher with the overwheiming rnajority of Anglo-American Courts that have considered the issue, have done in rejecting the a~tion.'~By rejecting the child's claim for 'wron,@bl life', a gap of Iiability is left which probably cannot be filled even by a successfd 'wron,oful birth' action brought by the parents, which will not include recovery for the child's pain and suffering or for pecuniary losses kyond the child's rnajority.

In what must now be regarded as a rhetoricai question, Stephenson L.J., in McKay, concludes his judgement denying the child compensation, with the statement, "ftlhe child suffers from serious disabilities. If the defendants had not ken careless, the child would not be suffenng now because it would not be dive. Why should the defendants not pay the child for its ~ufferin~?"'~~Why not indeed ! In the final analysis, whether nghtly or wrongly, tort law creates numerous distinctions, al1 of whch are capable of operating arbitrarily and unfairly to exclude liability in deserving cases. A 'person affecting' conception of harm is just another one of these distinctions created by a formalistic conception of tort law and accordingly,

'50 See supra notes 78,297 & 43 1. 751 McKav. supra note 1O at 1 184. 752 Cf:Garni v. Mullikin Medical Crr., supra note 30 at 826, where the California Second District Court of Appeal said that, "[tlhe essence of the Turpin decision is that logic should not defeat the claim of a severely impaired child in need of assistance.".

753 McKay, supra note 10 at 1 184. 'wron,@ül li fe' actions, as the y are currently charactensed b y Anglo-Amencan Courts, happen to fall outside the boundaries of liability in tort Law.

Interestingly, it bas been suggested that the 'wrongful life' cause of action might more appropnately form the basis for a claim for 'wrongful Living' by people whose lives have been wrongfully prolonged, agaînst their express wishes? In one recent case, the Ohio Supreme Court explained the alleged basis of such a claim, saying that "It is the denial of this liberty interest [in rejecting life saving treatment], when the medical profession either neghgently or intentiondy disregards the express wishes of a patient, that gives rise to the wrongful living cause of action. ,, .755 However, the Court ultimately concluded, on what can in the end only be rationalised on policy grounds, that damages should not lie for the prolongation of life?

Other solutions may be available to recognition of the child7sclaim in a traditional 'wrongful life' action, both within and outside the common law. For example, the problems caused by a 'person affectingTconception of harm and the 'Non-Identity' problem might be avoided by regarding the child's claim as an intentional rort. On this analysis, the child would not need to prove injury or durnage as the denial of the opportunity to have the decision as to whether she should be brought into the world with congenitd disease made by her parents is actionable per se.7n There are cases in which the wilful act or statement of the defendant, other than battery, which directly or indirectly causes physicai hmto the plaintiff has been

7,s See genenlly, Philip G. Peters, 'The IlIusion of Autonomy at the End of Life: Unconsented Life Support and the Wrongful Life Analogy" (1998) 45 UCLA L-Rev. 673; Elizabeth Wilbom, 'The Right to Refuse Medical Treatment: Where There is a Right, there Ought to be a Rernedy" ( 1998) 25 N-Ky-L.Rev. 649.

755 E.g- See Anderson v. St. Francis-St George Hospital (1996) 67 1 N.E.2d 225 at 227. ibid. at 228: 'There are some rnistakes. indeed even brcaches of duty or technical assaulis, that people make in this Iife that that affect the lives of others for which there sirnply should be no monetary compensation,". A person afecring conception of hmwould not provide a basis for rejecting the action because the required cornparison is between two knowable States of being, a shorter life by riarural death and a prolonged l$e of pain.

757 Tt is the very nature of intentional torts to the person such as battery rhat they are actionabte per se . See generat 1y, Margaret Brazier & John Murphy. Streer on Torrs. 10" ed. (London: Butterwonhs, I999)[Hereinafrer Srreer or1 Torrs] at 23ff. regarded as an intentional tort? It has aiso ken suggested that the wilfid transmission of an infectious disease, such as the HlV virus, while not constituting trespass to the person, might fa11 within the principle of ~ilkinson?'

If the denial of the opportunity to choose is recognised as a dignitary interest protected, like battery, by notional darnages, the problems with proving the Link between the wrong and the ikjccry would be av0ided.7~' This was effectively the position advocated by Justice Mullarkey, dissenting in Ciriinger v. Eisenbaum, who argued that the child, while not stating a daim for 'wrontful Me' did state a claim for lack of informed consent and negligent mi~re~resentation.'~'Justice Muilarkey rejected the 'wrongful Life' label as "misleading and decidedly unhelpfùl" in that it "prevents analytical ~larity".'~~He argued that claims for lack of infomed consent avoids the existence/ non-existence dilemma that so plagues the Courts in 'wronghil Life' action^?^

However, it may be difficult to argue that the defendant's failure to advise of the risk of disease was intentional. Furthemore, Commonwealth Courts have persistently rehsed to recognise 'lack of informed consent' cases as an intentional tort, prefemng in stead to classify them as neplipen~e.'~~Findy, there is a real question as to whether, if the child's claim in a 'wron,oful life' action was properly reco,gised as a claim for lack of informed consent as an intentional tort, whether damages would be restricted to nominal damages for

758 E-g. Wilkinso,i v. Downtown [ 18971 2 QB 57.66 UQB 493 (plaintiff could recover for nervous shock when toId her husband had been seriously injured in an accident). 759 Street on Torts, supra note 757 at 36. 700 Sec generally, Fleming, supra note 50 at 123. Another way to avoid the problems of proving 'injury' and causation in 'wrongful Iife' actions might be to regard the child's claim as a 'loss of chance' case, as in the lost opportunity or chance for the child to avoid his or her conception or birth with congenital disease. However, the law apparently looks unkindly on 'loss of chance' cases as actionable per se: E-g. Stephen R. Peny, "Risk, Ham and Responsibility" in Phifosophical Foundations of TOITLaw, supra note 477 32 1(arguing chat 'Ioss of chance' cases do not fit into a corrective justice framework of tort law). See also. Fleming, supra note 50 at 227-29. 76 1 Lininger, supra note 9 at 12 14.

762 Ihid.

763 Ibid 7M Sec supra notes 490 - 492 & accompanying texc the infringement of this right? Other avenues in private law that might also be worth exploring include fiduciary duties in equity where the requirement of establishing injury or harm would be more flexible and not subject to a 'person affecting' conception of ham. It is also an interesting question to consider whether the future birth of a congenitally disabled child might be an insurable loss.

However, the most comprehensive approach, at least in terms of fulfilling the aims of compensaring the victim of congenital disability or disease, would appear to be for the legislature to take it on in the form of some sort of sratrcrory nu faulr compensarion scheme. Such a scheme would not make the arbitrary distinctions made by a 'person affecting' conception of hm. Neither would it discriminate against victims of congenital disease where there was no fault on anybody's part- Furthennore, with a statutory scheme, the determination of the eligibility of a claimant for compensation would more likely be made openly by parliament debating the underlying ethical issues rather than by obscuring them behind artificial legai constmcts.

Ukimately, however, the implementation of such a scheme, and its extension to cases of congenital disability and disease WU depend on political will. Ironically, the same moral and political issues that have persuaded judges to conclude that 'wrongfhl life' actions are not justiciable by the Courts may ultirnately prove to be 'too controversid' for the Legislature as weil. Yet, as a result of the Human Genome Project and advances in science and medicine, more congenital diseases today can be predicted and tested for and therefore prevented, even if there is still no known treatment or cure. Furthennore, the birth of a cngenitally disabled child is no longer necessarily regarded by society and the law as a God- given blessing. Perhaps, then, it is time for the law to catch up with medicine and societal expectations and to recoepise congenital disabihy not so much as an act of God, genetic deterrninism or fate, but as a condition, contributed to or brought about by human intervention, and therefore, also human error.

Supm note 492.