Parents will have to bear the costs of bringing up healthy children in wrongful birth cases following a House of Lords decision which has led to a change in the law.
In the McFarlane v Tayside Health Board case, the House of Lords refused to allow Mr and Mrs McFarlane to recover the cost of bringing up their daughter who had been born following an unsuccessful vasectomy operation.
Since a Court of Appeal decision in 1986 parents have been awarded costs where negligence was found in the performance of the operation or in the advice given to the parents before the operation.
The House of Lords decided that it was unfair and unreasonable to make the doctor or health authority liable for the consequential responsibility of bringing up a child and that relieving parents of the financial obligations of having a child goes beyond the reasonable restitution for the wrong done.
In addition, the House of Lords said that the cost resulting from the birth of a healthy child could be calculated but must be balanced against the benefits which could not.
The Lords' ruling added that society had to regard the balance as beneficial as it would be morally offensive to regard a normal healthy baby as more trouble and expense than it is worth. This decision is in contrast to a recent court decision where Gail Taylor was awarded a record £1.3 million against Shropshire Health Authority to care for her disabled son after a failed sterilisation operation.
Dorothy Flower of Reynolds Porter Chamberlain, a solicitor specialising in clinical negligence cases, said: "The Taylor case is a first instance decision which could now be appealed.
"This would present the appeal judges with a difficult decision. If they were to follow the House of Lords' McFarlane decision, the parents would lose the damages they have been awarded for the cost of caring for the disabled children.
"To avoid that, the judges could distinguish the cases from McFarlane on the grounds that the children are not normal and healthy. This might amount to a suggestion that, where a child is disabled, the cost of bringing it up outweigh the benefit and blessing that child's life brings. By any standard, that is very unattractive argument. It is equally offensive to regard a disabled child as 'more trouble and expense than it is worth'."