A wrongful birth case fundamentally centres on a statement from the parents that, had they known about their child's disability prenatally, they would have terminated the pregnancy.
Only people at the end of their tether and determined to do the best for their family would be prepared to assert this, while holding a beloved and severely injured child in their arms.
One of the dilemmas for them, of course, is bringing such a case while in no way disrespecting those who knowingly chose to have and bring up a disabled child where abnormalities were indicated prenatally.
O will never talk and may only ever walk short distances. He is unlikely to ever be continent and generally wakes up at least twice a night and is very disruptive and noisy. He has significant behavioural problems, screams regularly, bites other people and pulls their hair. He chews cables and wood and will also scratch his skin, pull out his hair and push his fingers into his eyes. He will bang his head on the wall or floor.
In legal terms, O has no earning potential and lacks capacity. He has no sense of danger and will require 24-hour care for life. His life expectancy is to age 60.
Liability was admitted by the West Sussex Hospital NHS Foundation Trust for failure to diagnose O's disability. It was accepted that but for this admitted negligence, there would have been prenatal diagnosis that would have led to termination of the pregnancy at about 13 weeks and O would not have been born.
A wrongful birth claim such as O's is based on the financial costs of bringing up a severely disabled child above and beyond the normal costs of bringing up a healthy child. However, the law is in a state of flux with a trilogy of judicial authorities (McFarlane, Parkinson and Rees) at odds with each other over whether having any child, harmed or not, can ever be anything but a blessing.
Our primary case was that O's parents' claim was not restricted to the extra costs associated with O's disability, but also extended to the basic costs of an uninjured child. It was based on a negligent failure to advise of a disability.
An extremely difficult case pursued with the help of Gaby Gooday and Jane Hartwell, and one that had to proceed to secure the future of a little boy with enormous lifelong needs.
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