Journal ofMedical Ethics 1997; 23: 319-322 J Med Ethics: first published as 10.1136/jme.23.5.319 on 1 October 1997. Downloaded from Medical ethics and law Medical negligence and wrongful birth actions: Australian developments Kerry Petersen La Trobe University, Victoria, Australia Abstract The combination of ethical duties and legal Wrongful birth actions aim to compensate litigants who responsibility form the foundation of professional are negligently deprived by health professionals of their and legal accountability. The health professional has right to reproductive choice. Access to safe and legal an ethical obligation not to impose intentional or abortion is integral to the action and wrongful birth non-intentional harm on a patient. Moreover, if the claims in the United Kingdom have been facilitated by patient suffers harm, the health professional may be the Abortion Act 1967 (as amended). The recent liable in tort law if the plaintiff can establish that the Australian case CES v Superclinics (1995) 38 breach of the duty of care led to the reasonably fore- NSWLR 47' shows howjudicial confusion about the seeable damage. Courtesy of the Bolam2 test, the legality ofabortion can result in judges condoning courts in Australia and the United Kingdom have medical negligence. The Superclinics case also suggests shielded doctors from the fate of their United States that doctors are not required to provide pregnant women counterparts by endorsing medical practice as a copyright. with the same standard ofcare as other patients. These yardstick of legal liability in negligence cases. The developments show that law can become incoherent and Bolam test is still followed in Australia but has to health professionals can act negligently with impunity some extent been mitigated by the ruling in Rogers v when reproductive choice does not have a secure legal Whitaker3 where the Australian High Court decided foundation. that although evidence ofmedical practice is a useful guide for the courts in negligence cases it is not Modern reproductive medicine is particularly determinative. affected by rapid technological change and high Medical advances, particularly in reproductive http://jme.bmj.com/ consumer expectation. The medicalisation of medicine, have contributed to the expansion of a human reproduction has given doctors control over relatively new area of negligence in wrongful birth contraception and abortion and more recently over cases.4 The following discussion shows that the rela- artificial procreation through reproductive tech- tionship between the Australian and English courts nology. In addition, advances in preconception and continues to play an important role in the evolution prenatal testing, together with the relentless march of the wrongful birth actions, but case law can of genetic knowledge, continue to pose more and become incoherent and the ethical and legal respon- increasingly complex ethical dilemmas. These sibilities of medical practitioners can be avoided, on October 2, 2021 by guest. Protected developments place a greater ethical and legal onus when principles governing reproductive choice are on doctors to avoid causing harm through human not carefully distilled and do not have a secure and mechanical error. Furthermore, while the philosophical foundation in law. In the first English availability ofpreconception and prenatal screening wrongful birth case, Scuriaga v Powell,5 the plaintiff provides women with more reproductive choice, mother was awarded damages when her the resulting information adds a further dimension "unwanted" child was born after a negligently per- to the meaning of reproductive choice. Access to formed abortion. Since then, a number of cases safe and legal abortion is an implicit part of the have provided parents with compensation for the testing/screening procedures and, therefore, the birth of an "unwanted" child on the grounds that right of parents to proceed with a pregnancy must the child would never have been born unless the be respected and protected where there are indica- defendant had acted negligently or in breach of tions of fetal abnormality or potential disorders in contract. later life. The essence of the action is the negligent depri- vation of reproductive choice. In part, this action is a response to sophisticated medical advances and Key words societal and legal acceptance of reproductive Wrongful birth; medical negligence, abortion; repro- choice. It imposes legal responsibility and account- ductive choice; Australian laws; health professionals. ability on health professionals and compensates 320 Medical ethics and law: Medical negligence and wrongful birth actions: Australian developments J Med Ethics: first published as 10.1136/jme.23.5.319 on 1 October 1997. Downloaded from victims of medical negligence in cases where there They add: has been an unsuccessful sterilisation; misdiagnosis of pregnancy; failed abortion; misdiagnosis of fetal "[i]t is clearly arguable that a doctor who is abnormality after screening, and misdiagnosis of confronted with a woman in difficult financial maternal illness which can cause fetal abnormality. circumstances, who has had a large number of There is now an established body of English law.6 children and expresses a strong desire to avoid If the child's mother alleges that she was deprived further pregnancy, should reasonably be aware that of the opportunity to have an abortion because of she would be likely to attach significance to the risk the doctor's negligence it will be necessary for her of failure of a proposed sterilisation procedure."8 to be able to prove that she could have secured a legal abortion at the relevant time. Clearly, the This ruling in Rogers v Whitaker should make it action for wrongful birth is facilitated if the easier to prove a breach of the duty of care when abortion laws are liberal and clearly set out. The people seek genetic testing, genetic counselling, Abortion Act 1967 (UK) as amended by the prenatal testing or prenatal counselling for specific Human Fertilisation and Embryology Act 1990 reasons such as a family history, where there is (UK) makes specific provision for lawful medical already an afflicted child in their family or where abortion. The "social" clause permits abortions to they have other concerns which could cause fetal dis- be performed for therapeutic and social reasons up orders and the health professional knows and under- to 24 weeks and the remaining grounds which deal stands the reasons for their concern. with more serious indications are now free of gesta- tional limitations. In Rance v Mid-Downs Health Authority,6 which was decided before the Abortion Further obstacles Act was amended in 1990, hospital staff failed to The most recent Australian wrongful birth case CES detect fetal abnormality when conducting prenatal v Superclinics,9 shows that even where defendants are tests and the child was born with spina bifida. The found to have acted negligently, further obstacles wrongful birth claim failed mainly because of have to be overcome by the plaintiff in this areacopyright. of problems with causation but also because the fetus law. This case is important because it illustrates how would have been "capable of being born alive" ethical and legal obligations can be overridden when under the Infant Life (Preservation) Act 1929 (UK) abortion laws are unclear and judges disagree about when the hypothetical abortion would have taken legal principles underpinning state abortion laws. place. The possibility of an English court treating a The case also illustrates the dangers of blurring the hypothetical abortion as unlawful still exists distinction between civil responsibility and criminal because abortion is prima facie a criminal offence. liability in a medical negligence claim. Moreover, The legislation merely provides defences to a even though Australian judges draw on the authorityhttp://jme.bmj.com/ criminal act if the statutory conditions are satisfied. of English precedents in these cases, Australian law Nevertheless, the legislation tends to be interpreted is evolving within a different legal culture because liberally. changes to abortion laws in the majority of Australian states have occurred in the courts rather than in the legislatures. Before considering CES v Material risks Superclinics in further detail, however, I shall discuss There have only been a few wrongful birth cases in the legal framework governing abortion in Australia. Australia7 and the action is relatively novel. As well The Australian constitution gives each state and on October 2, 2021 by guest. Protected as deciding that medical practice does not consti- territory power over criminal laws which include tute a legal standard, the ruling in Rogers v abortion. Moreover, because Australia does not have Whitaker,3 referred to at the beginning of this a Bill of Rights, change to the draconian criminal article, also found that a doctor has a duty of care to statutes based on the English Offences Against the warn a patient of material risks, particularly the Person Act of 1861 can only be made by state or risks that a reasonable doctor would disclose, or territory parliaments or by courts. For obvious risks which the doctor could reasonably be reasons, Australian politicians prefer to avoid the expected to know would be significant for the issue. Moreover, it is worth noting that abortion patient. This case places considerable emphasis on statutes based on the Abortion Act 1967 (UK), the context of the professional