The High Court and Wrongful Conception: Reflections on Melchior

A “wrongful birth” action is one brought by the parents of an initially unwanted or unintended child, born with or without disability, as a consequence of negligence before birth. This was the situation in Cattanach v. Melchior: (2003) 199 ALR 131, a case of negligent sterilisation.

A “wrongful life” action is one brought by (or on behalf of ) a child complaining of negligent conduct before birth which results in its birth when, had there been no negligence, it would not have been born. The essence of the claim is that the child would have been better off not to be born at all.  The defendant medical practitioner does not cause the disability but fails to avert it. This was the situation in Harriton v. Stephens (2006) 226 ALR 391 and Waller v. James (2006) 226 ALR 457.

In the 2003 claim for wrongful birth, Cattanach v. Melchior, the High Court of Australia, by a bare majority of 4:3, and contrary to recent authority in the United Kingdom, held a Consultant Obstetrician and Gynaecologist, who had negligently performed a sterilisation procedure, liable for the costs of raising the child born subsequent to the failed procedure. The finding of negligence was relatively unproblematic – an unfortunate feature of the case was that the only question in the appeal to the High Court concerned recovery of damages for the cost of rearing Jordan Melchior. Duty, breach and causation/remoteness were all agreed in the plaintiff’s favour, as was recoverability of damages for the pecuniary and non-pecuniary impact of the unexpected pregnancy on Kerry Melchior. In consequence, it was perhaps easier for the majority (McHugh, Gummow, Kirby and Callinan JJ) to say that in allowing damages for the cost of rearing Jordan they were merely applying ordinary principles of tort law, as if this gave the result a value-neutral objectivity lacking in the outcome favoured by the minority (Gleeson CJ, Hayne & Heydon JJ). However, what did cause concern was the judgment that the medical specialist was liable for the costs of raising the healthy, but initially unwanted, child. The decision unleashed a tide of comment, including negative political reaction. In Queensland, where the case originated, and whose Redland Hospital – the venue where Dr. Cattanach carried out the sterilisation procedure – was second Appellant before the High Court, legislation was quickly introduced to reverse it. Section 49A of the Civil Liability Act 2003 (Q) provides that in the case of failed sterilisation procedures a court cannot award damages for economic loss arising out of the costs ordinarily associated with rearing or maintaining a child. Section 49B provides similarly in the case of failed contraceptive procedures or advice. However these provisions do not appear to cover a claim for wrongful birth where the plaintiff has lost the opportunity of terminating her pregnancy.

Three years earlier, in McFarlane v. Tayside Health Board (2000) 2 AC 59, the House of Lords held that a mother of a healthy, but initially unwanted, child could claim general damages for the pain, suffering and inconvenience of pregnancy and child birth, and for associated expenses, but that the parents could not recover the costs of bringing up their child. All of their Lordships rejected any suggestion that failure by a pregnant woman to undergo an abortion or arrange an adoption on discovering that she was pregnant could be a new act, which broke the chain of causation between the negligence and the birth¹. But the parents claim still should fail, essentially because the law regarded the birth of a healthy normal baby as a blessing and not as a detriment, the advantages and disadvantages of parenthood were inextricably bound together, and the benefits should be regarded as outweighing any loss.

In Cattanach, Gleeson CJ (in the minority) expressed similar reasoning²:

McFarlane did not decide whether a claim might lie where the unplanned child suffers from a disability. This question was considered in Parkinson v. St. James & Seacroft University Hospital NHS Trust [2002] QB 266 where the claimant mother of 4 children living with her husband underwent a negligently performed sterilisation operation and later conceived her fifth child who, when born, suffered from severe disabilities. She was held entitled to recover damages in respect of the costs of providing for her child’s special needs and care relating to his disability, but not for the basic costs of his maintenance.

In 2006, the High Court in Harriton v. Stephens and Waller v. James, this time by majority of 6:1, rejected 2 separate claims for wrongful life by 2 disabled children. The claims were on the basis that they would have been better off not being born rather than being born with their severe disabilities. The child appellants argued that their birth was the result of negligent action by the treating medical practitioners and they sought compensation for being born with disabilities. Justice Crennan summarised the issue at the end of her leading judgment in Harriton thus:

The crucial question for the majority of the court was whether Alexia Harriton and Keeden Waller suffered “damage” recognisable at law. The duty postulated by Alexia was that the defendant should have diagnosed rubella and then advised her mother to terminate the pregnancy. This duty also proposed that the measure of damages required that an assessment should be made to compensate Alexia to the degree necessary to place her in the position she would otherwise have been in but for the defendant’s negligence. That comparative position was one of “non-existence”. The court held that the law does not, and could not, recognise “non-existence” as a relevant comparator and, therefore, there was no compensable damage.

The controversial treatment of the concept of “damage” which allowed recovery in the “Melchior” litigation, yet denied a remedy to each of the “wrongful life” claimants, resurfaced recently in the ACT Supreme Court before Justice Annabelle Bennett in G. & M. v. Sidney Robert Armellin [2008] ACT SC 68 (24 July 2008).

In December 2002, the plaintiffs consulted the defendant, a specialist Obstetrician/Gynaecologist, to facilitate their wish to have a child either by artificial insemination (AI) or IVF.

Either procedure carries a risk of multiple pregnancy.

At first, AI was tried using donor sperm to be arranged through the Canberra Fertility Centre (CFC) where the defendant was a consultant and to where the plaintiffs were referred by him.

However, when continued AI attempts proved unsuccessful, the plaintiffs enrolled in an IVF program, following consultation with the defendant on 11 August 2003.

In evidence, Ms G. told Justice Bennett that she informed the defendant at this consultation that she only wished to have 1 child and did not want a multiple pregnancy and the Judge accepted this testimony.

The plaintiffs were advised by the defendant that IVF carries a high failure rate of about 70% and that the chances of success were increased when more than 1 embryo was transferred, as were the risks of multiple pregnancy – 0.1% with the transfer of 1 embryo and 20% with the transfer of 2.

There was general discussion at the 11 August consultation about whether to transfer 1 or 2 embryos but Ms G. instructed the defendant that she was unsure and would let him and the CFC know before the embryo transfer.

Subsequently Ms G. completed a written request for IVF at CFC. She was told by a nurse that she could let the Centre know of the number of embryos to be transferred at any time up to the procedure and she was advised to insert on the form that “up to 2” embryos were to be transferred, which she did.

By 11 November 2003 – the day before the procedure – Ms G. had 4 healthy embryos available for transfer to her and, although she had a telephone discussion with staff at CFC on this date concerning certain aspects of the procedure to be undergone the next day, she did not advise the staff of her final decision on the number of embryos to be transferred.

In fact, Ms G.’s evidence was that she only made the decision to have 1 embryo transferred after she arrived in theatre the next day.

Here, immediately before the procedure and before sedation was administered to her, Ms G. had a discussion with the defendant in which he confirmed there were 4 good embryos and asked her “Are we going to implant 2?” to which Ms G. replied “No, only 1” and held up 1 finger. The defendant replied that 1 embryo could still make 2 children to which Ms G. responded “Don’t even joke”. Ms G. was then placed under sedation and the defendant completed an Operation Record writing “Embryo transfer of 1 embryo under sedation”.

Unfortunately, nobody told the Embryologist of Ms G.’s decision. At the time of the defendant’s discussion with Ms G., the Embryologist was in the next room preparing 2 embryos – the standard number and the maximum nominated in Ms G.’s written consent form to CFC – for transfer to Ms G. by means of a straw.

After the surgeon readies the patient for embryo insertion, a space of only 60 seconds or so is available for embryo transfer, following which the embryos warm up, and pregnancy rates sharply decline.

This 60 second time interval was observed in Ms G.’s case without the defendant ascertaining from the Embryologist the number of embryos included in the straw.

After the transfer of 2 embryos was complete the defendant instructed the Embryologist “Just put the embryos back. I understand that she only wanted 1 embryo”, to which the Embryologist replied “No there were 2 … she signed for 2”.

The defendant specialist’s response was “Oh fuck”.

Following the procedure, the plaintiffs were advised that 2 embryos had been transferred. Twelve days later Ms G. had a blood test which confirmed that she was, indeed, pregnant, and a scan completed at 7 weeks confirmed a pregnancy with twins.

The defendant specialist was the sole defendant to the plaintiffs’ damages suit for the cost of raising their second child (Ms G. was delivered of healthy twin girls), general damages to compensate Ms G. for the extra pain and difficulty associated with twin-pregnancy and child birth and general damages for the effect on the relationship between Ms G. and Ms M. together with economic loss for both parents as a result of the birth of the second child.

At the outset of her 276 paragraph judgment, Justice Bennett declared that, by reason of the High Court Majority in Cattanach having determined that parents may sue for wrongful birth following proved medical negligence, she was not free to form her own view as to the ability of the plaintiffs to sue for the so-called “wrongful birth” of their second child. However, Her Honour declared that she personally found the reasoning of the minority Justices in Cattanach to be more persuasive.

In the result, Bennett J. held that the defendant was not in breach of his duty of care to the plaintiffs in failing to ensure the implantation of one embryo only.

She held that it was CFC’s responsibility to obtain from the patient the number of embryos she wanted transferred and CFC’s responsibility to ensure the Embryologist provided the required number of embryos. In evidence, the defendant told how he relied on CFC staff, including the Embryologist, to provide him with the number of embryos nominated by the plaintiff and Her Honour held that the defendant was entitled to so rely and that Ms G. ought to have realised that her conversation with the defendant in theatre would not have conveyed to him that she was then giving her final instruction on the number of embryos to be transferred. The Judge held that the defendant’s understanding from this conversation would have been and, in fact, was, that Ms G. was merely confirming instructions previously given by her to CFC and there was nothing to alert the defendant to a need for a double-check with the Embryologist.

However, in case of her reversal on appeal, Her Honour went on to consider other aspects of the case, including quantum.

In his submissions, the defendant sought to distinguish Cattanach on the basis that, in contrast to it, there was no unwanted pregnancy by Ms G. and thus, no injury. However, Bennett J. ruled that while a pregnancy was wanted, multiple pregnancy was not and that the plaintiffs was a claim for wrongful birth and thus compensable along Cattanach lines. Her Honour held that, in Cattanach, it was the interest of the Melchiors in their reproductive future which the law of negligence protected and constituted to be an injury. So also in Ms G.’s case, the physical injury was the unwanted multiple pregnancy. Her Honour held that, although Ms G. consented to the risk of a multiple pregnancy, she did so only to the extent that it arose with the transfer of a single embryo; in other words – to a risk of 0.1%, not 20%. In Ms G.’s case, Her Honour held, risk could not be avoided but could have been reduced.

Dr. Armellin contended that Ms G. failed to mitigate in 2 ways – first, through failing to undergo a reduction of the number of embryos that is, to abort one. The second was a failure to have 1 of the twins adopted at birth.

Her Honour surveyed the authorities noting, particularly, Priestley J.A.’s judgment in CES v. Superclinics. However Ms G.’s evidence was that another Obstetrician/Gynaecologist advised her that no Canberra doctor would selectively terminate one of her foetuses because it posed a significant risk that the other foetus would spontaneously abort, thereby resulting in the loss of both embryos. Ms G. accepted that advice and Bennett J. ruled that her decision not to undertake embryo reduction was reasonable, as was her failure to have one of the twins adopted.

Bennett J. assessed damages, prior to 35% reduction for contributory negligence (the defendant submitted 35% was an appropriate discount for Ms G.’s failure to advise CFC the number of embryos to be transferred and one has the impression, on reading her judgment that, but for this submission, Bennett J. would have reduced the notional damages further), in the sum of $317,486.29, $234,600.00 of which were the assessed costs of raising the second twin to age 18.

Again, when assessing damages, Her Honour declared:

“…. I am not free to apply my own views which, in this regard, correspond more closely with the reasoning of the minority (in Cattanach) on the way in which a child in a family should be understood for the purposes of the assessment of damages.”

Although Bennett J. did not elaborate on the reasons which underlay her expressed views they included, no doubt, the following:  that financial loss is not recoverable ordinarily at common law without special justification; that the existence of a child cannot be treated as legally recognisable loss or damage, that treating the existence of a child as a loss to the parents is inconsistent with many other rules affecting the parent-child relationship, that the determination of which expenses are and which are not to be the subject of an award must necessarily be selective and unprincipled, and that the damages are potentially indeterminate, both as to their nature and their amount.

Although secure from direct attack by the doctrine of stare decisis it seems clear, as exemplified by the recent expressions from Bennett J. in Armellin, that the Melchior decision continues to generate debate, both of legal principle and public policy.

Christopher Fitzpatrick

Footnotes

1. In CES v. Superclinics (Aust.) Pty Ltd (1995) 38 NSWLR 47, a case of repeated mis-diagnosis of a patient’s pregnancy which the patient claimed had deprived her of the chance to procure a lawful abortion, Priestley JA in the New South Wales Court of Appeal (Kirby P. agreeing) concluded that the parents were entitled to recover “any damage flowing from the negligent advice” to the effect that the mother was not pregnant but that, after a very short period, the parents could have surrendered the child to adoption, and after the decision to keep the child was made, the defendant was not legally responsible for the costs of rearing the child.
2. See at pages 138-143