Dear all,
Professor Moreham's concern could perhaps have been addressed by something like the conventional award given in Rees. At para 8, Lord Bingham described the motivation of the award thus: "To speak of losing the freedom to limit the size of one's family is to mask the real loss suffered in a situation of this kind. This is that a parent, particularly (even today) the mother, has been denied, through the negligence of another, the opportunity to live her life in the way that she wished and planned." We could argue about whether £15,000 is adequate to this loss. Similar issues might arise for nominal awards for contract breach or trespass to property where no damage was done. For a discussion of wrongful conception as loss of choice see Janice Richardson, The Classic Social Contractarians: Critical Perspectives from Contemporary Feminist Philosophy and Law, ch 7.
But damages for loss of choice do not, in Professor Tettenborn's characterization, "demonstrate full well to a child ... that he [sic] was unwanted in the first place". --Because there is a difference between being unwanted and being unchosen, a difference discovered by many surprise parents. It does not justify force to say that the forced course of action would have been chosen anyway.
Yours truly &c.,
Jack Enman-Beech
SJD Candidate, University of Toronto Faculty of Law