Introduction
Development of technology in the field of medicine has been so rapid that ethics, public policy and the law have struggled to keep pace. In an earlier English case, Thake v Maurie[1] ( ‘Thake’) where plaintiff sought to recover damages in several aspects, for example, pain of suffering of labour, present and future economic loss which includes cost of upbringing of a child. This research paper will only focus on cost of upbringing a child. In this particular case, the parents were successful in claiming the damages until its seventeenth birthday.
The case decision was not followed by the later English case, McFarlene v Tayside Health Board[2]. The court disallowed the recovery of cost of maintenance of a child on the basis of legal policies. Until the recent Australian case, Cattanach v Melchior[3], the court stepped out from policy considerations, considered from a new perspective of reality and awarded the recovery of cost of bringing up of a child.
The discussion on whether cost of child’s upbringing should be recovered will be considered and mainly focus on the following issues along with case precedents, social, legal and public policy considerations.
1) The purpose of recovering cost of child’s maintenance
2) Is having a child a burden or blessing
3) Should liability of doctor be extended to bear the child’s maintenance cost?
1) The purpose of recovering cost of child’s maintenance
The ordinary principle of negligence requires loss as a result of injury to be proven in order to claim for damages. It is vital to know about the subject matter of the claim of damage, that is, the cost of child’s maintenance but not the birth of a child. Of course, to claim that the birth of the child is a loss can be morally offensive as a child is not a commodity[4] and human life is unique which is impossible to value it in monetary form.
Justice Kirby sees the cost of upbringing of a child as a consequential loss upon the physical injury to the mother and thus it should be allowed to recover. Whether or not pregnancy is a physical injury is not the focus. The focus today is the aim of recovering the damages. It is not of usual compensatory nature but it is a kind of assistance to the life of the existing child whose parents are financially incapable to provide. The doctor who has been negligent in carrying out medical procedure pays the damages in pursuant to his legal and moral obligation. As compared to damages, it is reasonably ascertainable as it is a financial calculation and objectively necessary[5].
However, there is an issue of quantifying the cost in case of the disabled child. In two different claims, one wrongful birth, how do courts assess the cost of special need and care in the process of bringing up the child, and then other one wrongful life which is brought by the child, how do courts assess the damages by comparing with the non-existence of the child if negligence has not been incurred[6].
2) Is having a child a burden or blessing?
Starting with Udale, one of the reasons of why court refused to allow the recovery of child maintenance cost is, on the basis of public policy, having a healthy child is inarguably a blessing[7]. The process of nurturing the child and existence of parenthood is an enjoyment and this will offset the financial burden of raising up the child[8].However, that would not be the case when the pregnancy results in an unwanted consequence. For example in Parkinson v St James and Seacroft University NHS Trust[9] and Rees v Darlington Memorial Hospital NHS Trust 2004[10], having a child is likely to be a burden to the parents.
Nowadays, even if the child is born healthy by an able parent, the fact that having a child is a blessing is no longer practical in real life. In fact, the word ‘blessing’ is an overstatement to parents who do not want the pregnancy. It cannot be possibly regarded as a blessing when someone specifically undertakes sterilization procedure to avoid ‘benefit’ of parenthood.[11] In Thake, Peter Pain J pointed out the availability of abortion and sterilization in current society which implies that it is not necessary desirable when a child is conceived. Especially for families who were on a restricted income and decides to go birth control, having a child is not a blessing at all, but a burden.
Opinion diverged among member of the society, some might think it is a benefit, some might think it is a burden. In McFalene, Haje J suggested ‘deemed equilibrium’ between the burden incurred of having a child and the benefit of having a child, with each cancelling out the other, so the cost of child rearing is not recoverable. Unless one thing that tipped the balance, for example in Parkinson and Rees where one side is burdened with additional expense along with the special disability the damage is recoverable[12]. By the way, they are two different issues that do not engage in a balancing equation. To look into the idea of having a child in precision, enjoyment of parenting might be reduced due to economic realities in the future. Perhaps it is easier to calculate the cost of upkeeping ( economic loss) as a loss than as a benefit ( non- economic gain). Yet, the value of benefit of having a child could not be calculated and thus there is no way the claim can be based on a cost which outweighs the benefit[13].
In Cattanach, the majority of the court chooses to award damages of the cost of upbringing of a child on the basis of burden of legal and moral responsibilities incurred and financially not be able to bear. For the sake of maintain the child, there must be a solution to solve the problem so that ‘the child has a belly to be filled and a body to be clothed’[14]. This is the issue of reality. In assuring plaintiff with an amount of money as reparation, the court emphasized that they did not try to set aside the importance of the value of life and the parenthood.
3) Should liability of doctor be extended to bear the child’s maintenance cost?
The relationship between a doctor and patient give rise to a duty of care owed to the patient. It is reasonable foreseeable[15] that harm would have occurred had the doctor been negligent. In the case of wrongful life and wrongful birth, the parent would not have conceived the child but for the doctor’s failure in advising on the risk or carrying out operation with due care and skill.
However, Thake concludes that there is an inherent risk in every operation. By allowing the doctor to bear all the cost of rearing child which is a huge expense has in fact gone beyond the doctor’s culpability[16]. The responsibility of raising up the child should also be shared by the parents. It does not seem to be right seeing the parents are relieved of financial burden to the child rearing and allow the other to take over the onus. Lord Millet in McFarlene considered it as a price of parenthood.
Considering the consequence of extending liability of doctor, it is worrying that this policy will encourage doctors to do abortion for the sake of avoiding liability[17]. This is not a healthy social trend if it is adopted.
Conclusion
Although there are ethical issues on the sanctity of life which should not be valued in money, the argument of awarding damages of cost of maintenance should not just cease at this point. The child was born and the reality that he or she is going to face is more unexpected and difficult than assessing the damages. By awarding the cost of maintenance does not mean to impose an economic value on the child but it is a better respond to the call of living for help in bearing the burden of their affliction.
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