What is a wrongful birth claim?

Advances in technology have enabled health professionals to detect birth defects during antenatal checks using a variety of tests, some of which are non-invasive and others which can be invasive.

It is always the mother’s choice as to whether or not she wishes to undergo any of these tests. The outcome of such tests, if diagnosed and communicated correctly, can either reassure a mother that all is well, or give her the opportunity to consider whether or not to medically terminate her pregnancy.

Unfortunately, there are occasions where, despite the checks being undertaken, there is a failure to diagnose a birth defect and/or to advise the mother of the results. This failure takes away the mother’s freedom of choice and can lead to a wrongful birth claim.

A wrongful birth claim arises where the following two circumstances are present:

• where a hospital fails to warn a mother that her child may be born with a disability; and
• if that warning had been given, the mother would have chosen to terminate the pregnancy.

There are several disabilities, both cognitive and physical, which are detectable and can unfortunately be overlooked, such as Down’s syndrome, heart defects, limb defects and spina bifida.  This is not an exhaustive list but merely provides an example of disabilities which can and should be diagnosed, allowing the mother to make a choice of how she wishes to proceed.

If such a claim arises and is successful then the parents are entitled to compensation. Compensation takes the form of monetary damages and can vary depending on several factors, not least being the severity of the child’s disabilities and their specific care needs growing up. The amount of compensation is calculated by distinguishing the additional costs of raising a disabled child over those costs which would normally be associated with raising a non-disabled child. The mother will also be entitled to compensation in relation to the pregnancy and childbirth.

Amanda Cavanagh, a medical negligence specialist at Ashtons Legal comments: “These types of injury cases can be devastating for all involved for a number of reasons. If the tests are available, which they are, and the mother is denied the choice of making an informed decision as a result of either the failure to identify or the failure to communicate the outcome of those tests, then the financial and emotional burden of that failure can be immense and should be rightfully compensated for.”