This article first appeared in the summer 2003 issue of the Expert Witness.
Wrongful birth lawsuits are certainly not new in Canada – they have been around for over 25 years1 – and yet many of the fundamental issues relating to assessment of damages in these cases still remain unclear. This type of lawsuit arises in a variety of factual contexts. They include failed sterilization or abortion, negligence in prescribing contraceptives, and negligence in prenatal care or counselling. Although the factual contexts vary, all wrongful birth actions share the same essential characteristic: but for the defendant’s negligence, the child would not have been born.2
The following example is fairly typical. A married couple with four children decide that they do not want to have any more. One of the spouses undergoes a sterilization operation, but due to the negligence of the doctor the operation is unsuccessful, and a fifth child is subsequently born. What damages can the parents claim? In particular, can they claim the cost of raising the child to the age of majority, or beyond? What if the child is born with disabilities: how does that affect the assessment of damages?
Based on recent cases, both from Canada and elsewhere, it is clear that one of the key issues in wrongful birth cases is whether the child is born healthy or disabled.
The initial reaction of most courts (including Canadian) in wrongful birth cases was that it would be contrary to public policy to award damages for the cost of caring for a healthy child.3 However, this position changed in Canada in the 90’s (although much earlier in England)4, with a number of Canadian cases awarding substantial damages under this head.5 However, in recent years that position has changed. In particular, in 1999 the House of Lords in the case of McFarlane v. Tayside Health Board6 held that in wrongful birth cases involving a healthy child, no damages should be awarded for the cost of caring for the child to the age of majority. McFarlane did recognize that damages ought to be awarded for a number of various items, and this has been followed in subsequent Alberta cases.7 These include items such as pain and suffering during pregnancy, labour and delivery, and loss of income during pregnancy and for a reasonable period after the birth.
The reaction to McFarlane in other countries has been mixed. In Canada, there have been a number of recent cases (including those from Alberta) which have adopted its position that no damages should be awarded for the cost of caring for a healthy child.8 Indeed, in Alberta it has been held that, even if the cost of future care were claimable, it would be almost entirely offset by government benefits.9
However, one recent Alberta case – M.S. v. Baker10 – has taken a different view, holding that cost of care damages should be awarded if financial reasons influenced the parents’ decision to have no more children.11 In addition, the High Court of Australia (Australia’s highest court), in a decision rendered in 2003,12 declined to follow McFarlane. Therefore, overall the position in Canada remains unclear.
Most courts, even those who have denied damages for the cost of raising a healthy child, have accepted that these damages should be awarded if the child is born with disability.13 This type of case usually arises in the context of prenatal (or preconception) counselling or care; for example, where a woman is not informed of the risk of fetal abnormality associated with the woman’s medical condition or genetics, thereby preventing the woman from making an informed choice as to whether or not to initiate or terminate a pregnancy. The recent case of Arndt v. Smith14 provides a useful example. In that case the defendant doctor was held to have been negligent in failing to advise the patient of the risk of serious fetal abnormality arising from her having contracted chicken pox during the 12th week of pregnancy; the baby was born with severe disabilities.
The Supreme Court of Canada has recently addressed the question of assessment of damages in wrongful birth cases involving disabled children. In Krangle v. Brisco15the doctor responsible for prenatal care negligently failed to advise the patient of her increased risk of having a Down’s Syndrome child. The child was subsequently born with Down’s Syndrome. It was accepted that the parents were entitled to damages for non-pecuniary loss for the pain and suffering associated with giving birth to, and raising, a disabled child. Other items which were not in dispute included the cost of care to the age of majority. However, the contentious issue was whether the parents were entitled to damages for the cost of caring for the child beyond the age of majority. The Supreme Court held that they were not.16
It should not necessarily be assumed that the Krangle decision applies in all provinces, even though it is a decision of the Supreme Court of Canada. The reason for this is that the decision is based on the particular wording of the British Columbia legislation, under which parents are not legally responsible to care for their children after the age of majority,17 even if the child is disabled. In many other provinces, such as Alberta,18 the statutory position is different, and parents are legally obliged to care for their disabled children after the age of majority. Hence, in those provinces, a claim for cost of care after majority may well be available, despite the decision in Krangle.
1. The earliest cases include Colp v. Ringrose (1976) 3 L. Med. Q. 72 (Alta. T.D.); Doiron v. Orr (1978) 86 D.L.R. (3d) 719 (Ont. H.C.); and Cataford v. Moreau (1978) 114 D.L.R. (3d) 585 (Que. S.C.). [back to text]
2. See generally, E.I. Picard & G.B. Robertson, Legal Liability of Doctors and Hospitals in Canada (3rd ed., 1996) at 212-217. [back to text]
3. See Colp v. Ringrose, supra note 1; Doiron v. Orr, supra note 1. [back to text]
4. See in particular Emeh v. Kensington & Chelsea & Westminster AHA  2 W.L.R. 233 (C.A.). [back to text]
5. See, for example, Joshi v. Wooley (1995) 4 B.C.L.R. (3d) 208 (S.C.); Suite v. Cooke  Q.J. No. 696 (C.A.). [back to text]
6.  2 A.C. 59 (H.L.). [back to text]
7. M.Y. v. Boutros  A.J. No. 480 (Q.B.). [back to text]
8. See, for example, M.Y. v. Boutros, supra note 6; Mummery v. Olsson  O.J. No. 226 (Super. Ct.). [back to text]
9. M.Y. v. Boutros, supra note 6. [back to text]
10.  A.J. No. 1579 (Q.B.). [back to text]
11. The Court followed the reasoning in the Ontario case of Kealey v. Berezowski (1996) 30 O.R. (3d) 37 (Gen. Div.). For a critique of the Kealey decision see Picard & Robertson, supra note 2, at 215. The reasoning in Kealey was expressly rejected in M.Y. v. Boutros, supra note 6. [back to text]
12. Cattanach v. Melchior  H.C.A. 38. [back to text]
13. For Canadian cases see H.(R.) v. Hunter (1996) 32 C.C.L.T. (2d) 44 (Ont. Gen. Div.); Cherry v. Borsman (1992) 94 D.L.R. (4th) 487 (B.C.C.A.), leave to appeal to S.C.C. refused (1993) 99 D.L.R. (4th) vii (S.C.C.). See also Rees v. Darlington Memorial Hospital NHS Trust  E.W.J. No. 582 (C.A.). [back to text]
14. (1997) 148 D.L.R. (4th) 48 (S.C.C.). See also E. Nelson T. Caulfield, “You Can’t Get There From Here: A Case Comment on Arndt v. Smith” (1998) 32 University of British Columbia Law Review 353. [back to text]
15.  1 S.C.R. 205. [back to text]
16. For later B.C. cases on the same issue see Zhang v. Kan  B.C.J. No. 164 (S.C.); Jones v. Rostvig  B.C.J. No. 1840 (S.C.). [back to text]
17. Family Relations Act, R.S.B.C. 1996, c. 128. [back to text]
18. Maintenance Order Act, R.S.A. 2000, c. M-2, s. 2. [back to text]