Wrongful birth
Where a negligently-performed sterilisation operation results in the conception and birth of a healthy child, the parents ought be entitled to sue for the cost of raising the child. Discuss.
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Ok. I’ll bite. The obvious flaw in the argument is that the parents relinquished the right to sue for the cost of rearing the child the moment they decided to proceed with the pregnancy *and* raise the child themselves. Even if they refuse abortion for ethical reasons, they still have the option of adopting the child out.
That was the first thing I thought when I started reading about this issue. It’s also the approach taken by Priestley JA in Superclinics. However I’ve changed my mind and I don’t think it’s a reasonable approach to adopt. I’ve got a longer post on this planned — when I start writing my essay — but I wanted to see what people have to say off the top of their heads, without prompting.
1. In law I think they’d be entitled to, because (as I understand it and feel free to set me straight if I’m wrong) consumer legislation entitles me to claim a refund or whatever if the product or service fails to do what it is supposed to. But
2. You have to think of the emotional impact on a child of being labelled a “wrongful birth”. It might be one of those times when what you are legally entitled to do, and what your conscience might dictate, might be quite different.
Oh, I guess there is a deeply cynical position (3), where you are quite happy to keep the child now s/he’s in existence (which is the position of most accidental parents) but on the other hand, if you can get a big pile of moolah by sueing someone, then you go for it… particularly since Brendan’s made the sprog’s education so expensive…
Litigation’s a pretty toxic thing for society sometimes.
Two parts to this question, I think: (1) Should they be able to sue? - to which the answer is probably yes, for at least the cost of the operation in the first place (Helen’s point 1). But (2) for the total cost of raising the child? - probably not, although maybe, or something. Perhaps for the cost of abortion/adoption, although that neglects to account for the 9-month emotional attachment you have made (been forced to make). Perhaps. The only thing I know for sure is that I would hate to have to make that kind of decision.
Special commendation for the phrasing of your post, which kicks off a healthy ethical debate without you having to commit to any side until you’ve tested the waters.
Sex carries responsibilities, and one of those is the potential for babies. But if that chance is meant to have been eradicated? I don’t know. What level of negligence are we talking about? One that could have been tested - e.g. presence of sperm after vasectomy?
I don’t think it’s right to take that kind of legalistic attitude towards a child: Mummy’s little liability. But I don’t know for sure what I’d do if I was in this situation.
Sorry, I’m going to have to fence-sit on this one. I’m open to convincing, either way.
Leif — I’ve firmly committed, having done extensive reading on the subject over the last couple of days. But if I set out the current legal position and the various perspectives that have been put forward in court over the last thirty-odd years, it would change people’s responses. I want to see what people say now, off the top of their heads, and then what they say later when I discuss the issue in more detail.
(Hint: I agree with the formulation I’ve used in the post.)
Here’s a related question.
If a woman claims to be using a contraceptive when she isn’t, and falls pregnant, a man ought to be entitled to sue for the suppression of any child support order and the recovery of any monies paid.
Should this situation be treated the same as Robert’s hypothetical? If not, why not?
Maybe the man should’ve used a franger, then…
It didn’t take long for someone to blame the man, when the woman was the one who lied. Lefties are so sexist …
To the Left, men are forever the enemy. It can never be a woman’s fault whenever there is a readily available man to blame. It is a common tactic of the Left to distract everyone from their own inferiority.
Alternatively, you could accept that the male DID actually have the chance to protect himself, rather than relying on someone else’s say-so…..
…but back on topic….
…yes, it would be LEGAL, but not neccessarily RIGHT to sue for costs incurred via a faulty vasectomy, etc. You paid for a product/service, and it was/is faulty. But I agree with Helen, the emotional damage to the child could be severe.
And how do you decide the eventual total costs? Do you take the price of 12 years of exclusive private schooling, 18 years of comprehensive (and expensive) private health cover, numerous Nikes/Doc Martins/insert brand name here clothes, shoes and the like? Or do you take the cost of bulk-billed Medicare visits to the doctor, a public education and op-shop attire into account?
I think eventually you would have to say this; that while the couple concerned obviously did not want to have children (hence the request for the operation), they did at some point take the option to continue raising that child. So the medical provider is liable for the costs of any abortion or adoption (essentially, any costs incurred to achieve the intended result of the original procedure - no kids), and possibly a “pain and suffering” payment, anything past that is borne by the parents, as they made a decision to keep the baby. A decision that, as demonstrated, is at odds with their original intent. You cannot sue for change of intent after the fact.
There’s probably all kinds of holes in this argument, cos it’s late and I’m tired and I’m rambling from the top of my head……
And what if a man told a woman that he had had a vasectomy when in fact he had not, and she had an unwanted pregnancy as a consequence? Would that then be the female’s fault?
Alright, EP. I made it clear what this thread was for, but (as usual) you decided to hijack it. No more, okay? Post on your own blog and have your petty shitfight over there.
Here’s the hole I see…
I am dead scared of having children at the moment. It’s simply not something I am prepared for. However, if my girlfriend did fall pregnant, I know I would feel a responsibility to that child. Despite previous discussions on the subject, abortion would be a no go for us, because when it came to the crunch, we simply wouldn’t be able to bring ourselves to do it. These are not rational reasons, but when you get physically attached to that foetus, there’s a certain emotional attachment too. That emotional attachment that we have been made to go through will also require us to bring the child up to the best of our poor ability.
Now if we had been previously guaranteed that this was medically impossible, then that guarantor should probably bear some of that responsibility. I wouldn’t go to the extent of litigation, but I’d certainly ask some questions and peruse my options (and probably do the guilt trip on them). I agree with Luke W there - “it would be LEGAL, but not neccessarily RIGHT”.
On the other hand (and here is the flaw), the decision to keep the baby is NOT at odds with our original intent.
Of course that doesn’t really answer the question (just to remind people):
Ought we be entitled to sue, i.e. should it be legal (even if not necessarily “right”).
I don’t like the whole medical litigation thing. To me its like a horse race. You go into the betting for the fun, knowing there is a risk. If you don’t win, you don’t sue because you accepted the risk.
The same with medicine. We are hugely better off with a medical system. Without it, our potential suers would probably be pregnant anyway (excited little critters that they were) and having a baby in a ditch at the edge of the field into between scything cabbages. Or something. You know what I mean.
When I go to hospital, with the best will in the world, fallible people will act on my body and sometimes make mistakes. Them’s the breaks. And this is that kind of mistake. Yes, someone made an error in the beginning, but the baby arrived in an event attended to science and a heap of community money to make it safe.
That doesn’t mean we shouldn’t punish some flagrant drunken doctor smashing up a patient, but that the insurance and compensation system is a bad way of doing it.
ps - I bet Leif would make a great dad. Having kids when you are young is better, if you can manage it.
Dave, I think there’s a distinction between an honest mistake within the realms of professionalism, and negligence. There’s a threshold there that needs to be broken before you have the right to sue, and it goes beyond the mere fallibility of the practitioner involved.
Oh, EP, I realised that what I should’ve prefaced my statement with “Never trust a woman. The man should’ve used a franger.”
Fair enough Leif, I see your point. However, you have crossed the rubicon from not wanting a child to wanting a child somewhere in there. And that is different to your original intent. Possibly my use of the phrase “at odds” was wrong, but your desire/intent/call it what you will has changed.
Nevertheless, the right to sue (should the case pass the negligence bar that Robert rightly points out) should be extant. Having the right to sue is not the same requiring any wronged party to sue, but the option must be present.
Entitled to sue? Sure.
But not for the cost of raising the child. Only for the costs of rectifying
the negligence. So they could go for:
emotional/stress damages
cost of another snip
cost of abortion or cost of birth and adoption, their choice.
If they choose to keep & raiise it then that’s their decision.
This all assumes that there is real negligence, of course.
No op is properly presented with a 100% guarantee.
I like that this post was phrased as an essay topic.
But I have too many essays at school - you’ve scared me away.
Pretty much what I said above Clive - which means, of course, that you’re right. :-)
There were some pretty ordinary left bashing cliches posted earlier, but nevermind.
Re: Legal action
(a) Legal action should be able to be taken to recover the costs of the operation;
(b) People should be aware upon taking these operations that they do not always succed;
(c) Adoption is always an option rather than rearing the child; so is abortion, but not exactly desirable; and
(d) Perhaps doctors records of successful and unsuccessful operations should be on the public record; and doctors should be registered etc if they fail too many of these operations.
I think this is sensible because:
(a) The last thing any of us need is getting pregnant after a failed sterilisation to become a money making venture. Child bearing is far more complex than a monetary transaction and should not be lowered to such;
(b) Legal action in this area will mean costs on our legal system, etc, and increased costs for the original operations; and
(c) Legal action will still only be available to those who know the system and can afford the legal action in the first place;
In far more general terms… I think we need to appreciate that privatised education and health care systems inevitably increase medical related legal action, as they increase the need for that legal action. If you have a decent publicly funded health system, then you do not need to sue for medical costs. It’s too late at night to comment further, but I think it not a coincidence that the Liberal Party is dominated by business people and lawyers.
rob, why did you turn EP off? i was genuinely curious to see what bizarre non sequitur he came up with next.
“No op is properly presented with a 100% guarantee.”
If my partner got pregnant, we could not abort something we are attached to, and we could not give away a life we have become emotionally attached to after nine months. My original intent when having the op would be to avoid having to go through all this, since I am not ready for it (e.g. financially, emotionally etc.).
I suspect many such ops are undertaken with this position in mind. If through negligence a couple is given a child, I think they are entitled to sue for more than just the cost of the botched op.
Total cost of child, though? Hmm, not sure.
(Again, this is what should be legal, not necessarily what is right.)