Date: Tue, 9 Dec 2003 20:49:31 -0400

From: Jennifer K Bankier

Subject: Rees v Darlington, cont

I used to teach a case which provided an overview of the law in this area in the context of whether public policy (in the duty aspect of negligence) precluded recovery of compensation by the parents for birth of a child in the context of bungled sterilizations, bungled abortions etc.

The position that public policy did preclude this recovery is rather like the position of Prof. Cooke to which I took exception, namely, that:

that "it is WRONG regard [sic] the birth of a child as something for which anyone should be compensated."

An outright ban on such recovery based on the proposition that the birth of a child is inherently always a blessing in terms of public policy, and that compensation for such a birth is inherently wrong is rather different from a debate under ordinary damage assessment law about the nature of the loss which should be compensated, which is the matter which the two responses to my commentary reproduced below are debating.

In essence, it has been suggested that perhaps there is an obligation to mitigate both negative financial and negative non-pecuniary consequences by giving the child up for adoption, or, perhaps, by logical extrapolation, by saying that there is an obligation to mitigate by having an abortion so there is no child. The latter proposition would be a serious burden for members of some religious groups. (One could, of course, also mitigate financial loss through rearing a child by giving the child up for adoption or by having an abortion.)

The issues above are highly controversial, and I do not have a firm position on them, perhaps reflecting the fact that if my sterilization had failed, I would in fact have given any resulting child up for adoption.

What about families for whom, unlike me, the negative non-financial consequences consist of stress from raising a child that they would like to have but cannot afford? Would the amount required to compensate for the non-pecuniary harm (assuming it exceeds or completely eliminates the positive aspects of childrearing as a result of stress) be greater than, the same as, or less than the amounts required to rear the additional child?

In any event, if the law required families to mitigate through adoption or abortion as a result of failed sterilization, wouldn't the parents be able to claim damages associated with the pain and suffering of being forced to give up the child to adoption or of having an abortion if they actually did use adoption or abortion?

If the law denies recovery for costs of child-rearing and negative non-financial aspects of child-rearing because of failure to adopt out or abort, shouldn't the parents then be able to claim at least the amounts they would be entitled to if they did adopt or abort, even if they in fact kept the child?

What does the law want to encourage parents to do in such a situation? Keep the child with compensation, or encourage adoption and abortion of unplanned children resulting from negligence of health care providers?

Not an easy issue for anyone who doesn't share the "contrary to public policy" perspective.

JKB

On Wed, 10 Dec 2003, Andrew Robertson wrote:

While some parents would and do take that step in mitigation, I don't think it could be suggested that it is unreasonable to keep the child and seek compensation for the financial loss. The Australian case Cattanach v Melchior is an interesting one because the parents were not wealthy and genuinely needed compensation for the financial burden that they (or rather one of them) had taken reasonable steps to avoid (by seeking sterilisation).

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