In The Age today there’s an article about a couple with a severely disabled child suing an IVF practitioner in negligence:
Debbie and Lawrence Waller love their 11-year-old son, Keeden, but they believe he should never have been born.
Just days after Mrs Waller gave birth in August 2000 following IVF treatment, Keeden suffered a massive stroke that caused severe brain damage and meant he was never able to walk, talk or go to the toilet.
The stroke was the result of a rare blood clotting condition known as antithrombin deficiency which Keeden inherited from his father.
Tragically, the Wallers did not know there was a 50 per cent chance that Keeden would have the defective gene.
They are now suing the IVF specialist who oversaw Keeden’s conception – Christopher James – in the NSW Supreme Court for what is known as ”wrongful birth” and seeking compensation in the order of $10 million for the lifelong care of their handicapped son.
”We love Keeden now that he’s here, but if we had the right information and the right options we wouldn’t have gone ahead with the birth, not in the way we did,” Mrs Waller said from her home in Kangaroo Valley yesterday.
”Had things been done right, Keeden would never have been here. He would never have to go through the suffering he goes through – the seizures and all.”
The case raises a number of legal questions and could set a precedent for other parents whose children have disabilities.
The Wallers told Dr James about Lawrence’s blood clotting condition, and they claim he breached his duty of care to them by failing to take proper steps to find out whether it could be passed on by just one parent.
In the first day of the hearing yesterday, Justice John Hislop heard that Dr James did not seek to find out the answer himself, but handed the couple the name and phone number of a genetic counsellor at Wollongong Hospital on a post-it note. It is alleged the note was given to the Wallers in the context of a discussion about fertility not genetics, and that the phone number was the main switchboard for the hospital rather than the counsellor’s direct line.
When the phone went unanswered the Wallers did not call back, and it is alleged that Dr James did not mention the genetic counsellor again, and began the IVF process.
”There was a duty of care on the part of Dr James to ensure that both he and the Wallers understood that this problem could be passed on and for there to be proper counselling and discussion about the other options they had, including the option of an anonymous sperm donor,” counsel for the Wallers, David Higgs, SC, said.
It is not the first time the Wallers have been to court in relation to their son. In 2006, they launched an unsuccessful ”wrongful life” case in the High Court on Keeden’s behalf, in which he sought compensation for future loss of earnings and opportunity.
I have commented on the earlier High Court decision involving the Wallers here. A majority of the court found that the doctors did not owe a duty of care to the plaintiffs. It was found that Dr James did not in fact cause the disabilities from which Keeden suffered. The Court was somewhat troubled by the fact that there was an inference in Waller and Harriton (the appeal heard at the same time) that it would be preferable if the plaintiffs had not been born. Furthermore, the only persons who could lawfully ask for the pregnancies to be terminated were the mothers of the plaintiffs. If a duty was recognised, this might raise an uncomfortable situation where a mother of a disabled child was encouraged to abort their child by a doctor (even if the mother’s wishes were otherwise).
At the time, I noted that Kirby J dissented. His judgment displayed an intense sympathy for the plaintiffs and a corresponding desire for the plaintiffs to be compensated by the doctors’ insurers. Kirby J’s judgment was consistent with the case of Cattanach v Melchior (2003) 215 CLR 1, which awarded damages for “wrongful birth”.
In Cattanach v Melchior  HCA 38, a couple sued a doctor over a tubal ligation. The wife had told the doctor that she had had her right fallopian tube removed as a teenager, and accordingly, he only ligated her left fallopian tube. In fact, the information that the right fallopian tube was removed was incorrect. Four years later, she discovered she was pregnant, and gave birth to a son. The parents successfully sued for damages compensation for (1) losses suffered as a result of the pregnancy and birth (2) losses suffered by the husband for a “loss of consortium” and (3) damages representing the costs of raising the child. They were successful (to varying degrees) in all claims. The High Court confirmed that the plaintiffs were entitled to damages for the third head of damages.
The English House of Lords rejected a claim of wrongful birth in almost identical circumstances to Cattanach in Macfarlane & Anor v Tayside Health Board (Scotland)  UKHL 50. Lord Millett in that case said:
In my opinion the law must take the birth of a normal, healthy baby to be a blessing, not a detriment. In truth it is a mixed blessing. It brings joy and sorrow, blessing and responsibility. The advantages and the disadvantages are inseparable. Individuals may choose to regard the balance as unfavourable and take steps to forego the pleasures as well as the responsibilities of parenthood. They are entitled to decide for themselves where their own interests lie. But society itself must regard the balance as beneficial. It would be repugnant to its own sense of values to do otherwise. It is morally offensive to regard a normal, healthy baby as more trouble and expense than it is worth.
This does not answer the question whether the benefits should be taken into account and the claim dismissed or left out of account and full recovery allowed. But the answer is to be found in the fact that the advantages and disadvantages of parenthood are inextricably bound together. This is part of the human condition. Nature herself does not permit parents to enjoy the advantages and dispense with the disadvantages.
Clearly the present case is different to either Cattanach or Macfarlane. Poor Keeden is not a normal, healthy baby. The costs of looking after him must be immense, and I am sure that his parents worry about what will happen to him if something should happen to them. It must be one of the hardest things to face about having a severely disabled child.
Despite my intense sympathy for the Wallers, this case bothers me. What if Keeden hadn’t been conceived by IVF? Who would the Wallers have sued then? How far must a doctor go in ensuring that a patient undertakes genetic counselling? As I have said previously, I really wonder if the law of negligence is a suitable vehicle for getting proper support for disabled children. Whether one gets support via negligence depends on whether one can find someone to wear the blame. And sometimes, there simply isn’t anyone to blame. [As an aside, I was born extremely prematurely and have had some physical problems as a result of that, but it wasn't anyone's "fault" (if anything, it was probably my own, as I understand babies release the hormone which triggers labour).]
As I have noted previously, cases such as this highlight the need to provide better care for disabled people in our society. (I know from DEM’s posts that the present trend is for governments to try and renege from this responsibility, and I must say that I find that repugnant.) It is unavoidable that some people will be severely disabled because of disease or the circumstances of their birth, and sometimes, it is not anyone’s “fault”, but as a humane society, we should do all that we can to assist, regardless of the fault or lack thereof. This is a burden which, as a moral society, we must all shoulder, and that this is precisely the kind of thing which the welfare state should help with. The state should assist with the provision of facilities for the proper care of disabled people, whether that be residential facilities, respite care or community activities.
In any case, it will be interesting to see what happens with this case. Having lost on the “wrongful life” claim, will the Wallers now succeed on a “wrongful birth” claim? Or will this lead to a reconsideration of Cattanach?