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

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1 CONGENITAL DISASILITY, MEDICAL NEGLIGENCE & 'WRONGFUL LIFE' ACTIONS: THE LIMITS OF LIABILITY IN ANGLO-AlMERICAN TORT 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 OCopyright by Dany Merkel 1999

2 National Library Acquisitions and Bibliographie Services Bibiiotheque nationale du Canada Acquisitions et services bibliographiques The author has granted a nonexclusive licence allowing the National Library of Canada to reproduce, loan, distribute or sel copies of this thesis in microform, paper or electronic formats. The author retains ownership of the copyright in *fis thesis. Neither the thesis nor substantial extracts fiom it may be printed or otherwise reproduced without the author's permission. L'auteur a accorde une licence non exclusive permettant à la Bibliothèque nationale du Canada de reproduire, prêter, distriiuer ou vendre des copies de cette thèse sous la forme de microfiche/film, de reproduction sur papier ou sur format électronique. L'auteur conserve la propriété du droit d'auteur qui protège cette thèse. Ni la thèse ni des extraits substantiels de celle-ci ne doivent être imprimés ou autrement reproduits sans son autorisation. *

3 CONGENITAL DISABUITY, MEDICAL NEGLIGENCE & 'WRONGFUL LIFE' ACTIONS: TEE LIMITS OF LIABILITY IN ANGLO-AMERICAN TORT LAW 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' cause of action in Anglo-Amencan tort law. 'Wrongful iife' actions are brought on behalf of congeni tally disabled children aileging medical negligence b y a de fendant 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 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 malpractice 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.

4 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.

5 CHAPTER 1: THE DEVELOPMENT OF THE CEILD'S RIGHT OF ACTION FOR NEGLIGENTLY INFLICTED PRENATAL IN JURY ~.-n--*~~-.~*~n--~.~-nn-**n-~~-~*~.-~~ht~n~~~n.m.mn*nn~ I THE EARLY COMMON LAW & THE REQUIREMENTOF LIVE B IRTH: WALKER, D~ETRICH & AWRE...., DEEMING LEGAL PERSONALITY AT THE TIME OF THE WRONG: MOWREN, ~"RAMWA YS.,.,..,...,,.,., THE VIABILITY REQUIRCMEN~ IN AMERICA & A RIGHTTO BEGIN LIFE WïTH A SOUND BODY & MWD: V. Kan...,,, ~ BONBREST THE UNBORN CHILD AS A FORESEEABLE P L A ~ WATT : V. RAMA, DUVAL V. SEGUIN & BURTON V. ~SUNGTON HA-...-.,.,.....,,., THE STATUS OFME UNBORN CHILD & 'WRONGFUL DEATH' BEFORE BIRTH ANALYS IS OF THE FORESEEABLE PLAINTIF APPROACH CONTINUING WRONGS & THE EXTENSION OF LIABW TO PRE-CONCEPTION TORTS: JORGENSEX RENS&OW& BERG~ESER.,,..., E.E. E. E. E., THE 'NO DUN' RULE & SUCCESSNEGENERATION CLAMS: 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 L m7 ACTIONS: A WRONG WITHOUT A JNTRODUCTION&OVERVIEW THEDUTYQUESTION:ARIGHTNOTTOBEBORNORAP~A~~ER~GHTTO~VELIFE-CREAT DECIS~ONS MADE BY ONE'S PARENTS? CAUSATION, OMISSIONS & INJURY: AN ANALOGY WlTH THE LACK OF INFORMED CONSEKT CASES A7 3.4 THE ASSESSMENT OF DAMAGES IN 'WRONGFULIFE' ACTIONS: THE COMPENSATORY PRINCIPLE OF TORT LAW (RESTITI/TIO IN INTEGRUM) & REMOTENESS OF DAMAGE ,...O. OOO~.O...OOOOOOO LEGALLY COGNISABLE HARM & STATES WORSE THAN NON-EXISTENCE AN ANALOGY W THE (OTHER) END OF LIFE CHAPTER 4: ANALYSIS OF 'WRONGFUL LIFE' ACTIONS: A 'PERSON AF'FECTING7 CONCEPTION OF HARM & TAE LIMITS OF LIABILITY IN ANGLO-AMERICAN TORT LAW 'WRONGFULIE' ACTIONS & A 'PERSON-AFFECTING' CONCEPTION OF HARM...., THE PLIC CATIONS OF A 'PERSON AFFECTING* CONCEPTION OF WM: ARBITRARY DlSnNCTIONS & UNJUST L~MITATIONS CONGEN~~AL DISABILITY, MEDICALNEGLIGENCE & m~ LMITS OFLIABLTTY M ANGLO-AMERICAN TORT LAW: A JOB FOR THE LEGISLATURE? ~...~...-.~--~ ~

6 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 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 ï (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) 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 Bioethics, rev, ed, Warren Thomas Reich ed., (New York: Macmillan) at 976ff. 'Congenital disability' refers to a condition that is existing frorn, and usually

7 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 ~rojectr new 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 'wrongful birth' 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: <httpd/apnet.~om/inscieht/l lcongen L.html> (last modified: 25 December. 1998). 6 Scien tists 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 <hrtp://www.modimes.org/healthlib~a~~2/birthdefects/default.htm>. 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~~

8 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) 1 O6 Cal.App.3d 8 1 1, 165 Cal, Rptr. 477 [hereinafter Curlender cited to CaLApp3d.](Tay Sachs disease); Goldberg v. Ruskin (1986) 1 13 Ill2d 482,499 NE2d 406 [cited to N.E.2dI (Tay Sachs disease); Schloss v. Miriam Hospital, ( 1999) WL (R-1, Super.) online: WL (Tay Sachs disease); Turpin v. Sortini. ( ) 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 1 10 (polycystic kidney disease); Bruggeman v. Schimke (1986) 239 Kan, 245,718 P 2d 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 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 P.2d 3 15 [cited to P.2dl; McKay v- Erser Area Healrh [ ER 77 1, 1 QB WLR 890 (U-K CA)[hercinafter McKqÿ, cited to 1 QB 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/heal thlibnrvufacts 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 d l, 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 physicians 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 & & accompanying text-

9 '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 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 damages 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]; Effis v. 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-Sac hs 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~ 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 abortion.

10 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~~l birth7 cause of action. The problems arise fiom traditional negligence p~ciples, according to which the plaintiffs damage or cornpensable h m is 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 iliequipped 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 See infra notes 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 (Witwatersand Local Division); Bundesgerichtshof 18 Jan (German Suprerne Court) cited in Carel JJ-M. Stolker "Wrongful Life: The Limits of Liability and Beyond (1994) 43 1.CL.Q at n.2. " McKq. supra note 10 at

11 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 evidence 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 h m into 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 (D.S.C. 1983)(Plzillips IV); Smirh v. Cote, supra note 10 (New Hampshire law requires parents to support their disabled adult children); James G. v. Casena, supra note 1 1 at (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 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 statute of limitations in a 'wrongful birth* action did not start to mn until the birth of the child, rather than from the physician's negligence.

12 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 torts provides a sound conceptual basis for recognition of a duty of care 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

13 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 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 consent' 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 af5ectingt conception of h m 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 h m will 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: "Claims for 'wrongful life' are essentially actions for malpractice based on negligent genetic counseling and testing.".

14 Some possible alternatives to 'wrongful Me' actions are briefly considered that might enable legal of the child's claim. These include conside~g the child's claim as an intentional tort 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

15 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 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.

16 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 criminal law '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." '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 An 35 PJ. Pace, "Civil Liability for Pre-Natal Injuries" (1 977) 40 Mod. L Rev at 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)[hereinaFter Congenital 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.

17 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 L w: Text wirh Materiais 2" ed. (London: Buttenvorths, 1994) at E.g. McKay, supra note 10. According to Kennedy, one of the most important English cases on medical negligence, Whireltortse v. Jordan [ ] 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 [ D.L.R. 337, S.C.R- 456, ( 1933) 4 1 C.R.C (S.C-C.) interpre ting the civil taw of Quebec)[hereinafter Montreal Tramtvqs cited to D.L.R].

18 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 k t prenatal toa liability." recorded American case to address the issue of 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 ( ), 28 L.R. Ir. 69, (Q.B. h.)[hereinafter Walker]. 46 Ibid. 47 ( 1884) 138 Mas. 14 [Hereinafter Dietrich]. 48 (1 900), ,56 N E 638 [hereinafter Affaire, cited to N.E.]. See also Drobner v. Peters, (192 1)' 252 N.Y 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 S-W.2d 944. Restatement of the Law of Torts (19391, 869 at 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 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

19 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 de fects, from the teratogenic hazards of modern drugs suc h 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 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 Compensarion for 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 Q-B. 276; In Re F. (in itrero) [ Fm, 122; C v. S. [1988] Q.B E.g. Tremb!ay v. Daigle [1989] 2 S.C.R. 530, 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.").

20 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) 512 (Ont. CA-)- See dso B-M. Dickens, ''Abortion, Amniocentesis and the Law" (1986) 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) , 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 The George and Richard, ibid. 60 Re Esrare of K; Er pane Public T mee (22/4/96) The Aust. Legal Mnthly Dig. (Tas. Sup. Ct.), ontine: Thomson Professional Information Asia Pacific Pty Ltd tfa LBC Information Services 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.

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