Wrongful birth claims

Wrongful birth claims

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.

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Common circumstances of wrongful birth claims

A wrongful birth claim may arise in circumstances where:

  • a sterilisation operation was negligently performed
  • a patient is not warned of the risks of the possibility of conception after a sterilisation
  • an abortion is negligently performed resulting in continuation of the pregnancy
  • defective contraception is supplied
  • a patient is not advised of the risk of falling pregnant while using contraceptives
  • a patient is implanted with multiple embryos during reproductive treatment resulting in multiple births when they were only expecting one child
  • a foetus is not diagnosed with a condition, which would have allowed the parents to decide to lawfully terminate the pregnancy

Can you sue for wrongful birth?

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.

What type of damages are available for wrongful birth?

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.

Wrongful birth cases

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.)

Next steps - get advice now

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.

Last update on:
May 29, 2018
Disclaimer: This information is designed for general information in relation to Queensland compensation law. It does not constitute legal advice. We strongly recommend you seek legal advice in regards to your specific situation. For expert advice call 1800 266 801 or chat via live chat to arrange free initial advice with our Principal lawyer, Greg Smith.

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