A wrongful birth claim is a type of medical negligence action brought against a doctor for negligent advice or treatment which deprived a parent of the choice to avoid conception or terminate the pregnancy.
The ‘wrongful’ act is the advice or treatment given, not the birth itself or the child’s right to exist.
A wrongful birth claim may arise in circumstances where:
Yes. In Queensland it is possible to sue for ‘wrongful birth’. It involves filing a civil action against the medical provider for negligent conduct which has resulted in you being deprived of the choice of not having a child.
All medical negligence claims, including wrongful birth claims involve complex issues of law. If you are considering bringing such a claim, you should seek the advice of a lawyer as soon as possible.
In Queensland the parents of a healthy, but unwanted child can claim general damages for the pain, suffering and inconvenience of pregnancy and child birth including associated antenatal, obstetric and labour care costs.
Queensland legislation specifically excludes compensation for costs associated with rearing or maintaining a healthy child due to failed sterilisation and contraceptive procedures. However no mention is made of claims arising from negligent embryo implantation procedures, so economic loss for healthy child rearing costs may be available in such claims.
Where the child is disabled or born with a serious condition, additional costs associated with rearing the disabled child are generally always available.
The Queensland case of Cattanach v Melchior in 2003 involved a negligent sterilisation procedure which resulted in Mrs Melchior falling pregnant and giving birth to a healthy child. The High Court held that the doctor was negligent and was liable for Mrs Melchior’s antenatal, obstetric and labour care costs and compensation for pain and suffering. (While Mrs Melchior also recovered damages for the cost of rearing the unwanted though healthy child, legislation has since been passed in Queensland that prevents this.)
It’s important to get advice for your specific situation. Check if you can make a risk-free compensation claim and get free initial advice from our Principal lawyer, Greg Smith.
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