Australian court rejects 'wrongful birth' claim

Xavier Symons
10 May 2013
Reproduced with Permission

The concept of 'wrongful birth' has suffered another defeat, this time in Australia. A New South Wales couple has lost a case in which they sued an IVF specialist for failing to indicate their child's chance of a disability.

Lawrence and Debbie Waller lodged the claim against Dr Christopher James, a gynaecologist who helped them conceive their son by IVF. They claim that Dr. James did not inform them of the 50% chance that their son would inherit a rare blood-clotting condition, antithrombin deficiency.

A few days after birth in August 2000, their son Keeden had a stroke which left him disabled for life. The Wallers claimed the stroke occurred partly because of a blood-clotting condition inherited from his father.

The judge concluded, based on evidence from medical expert called by the defendant, that Keeden's antithrombin condition "at most was a minor contributing factor and was possibly irrelevant to the outcome". The Wallers had claimed $10 million in damages.

Courts around the world have been very reluctant to recognise claims of "wrongful birth" as this would require them to admit that non-existence is superior to existence. It is yet to be recognized as a cause of action in 25 US states. However, in some US state courts significant damages have been awarded to parents making such claims.