When birth is not a -- happy event (growing number of suits over wrongful birth, wrongful pregnancy).

Canadian lawsuits involving claims for wrongful birth, wrongful life, and wrongful pregnancy have attracted the attention of the media and the public alike. There appear to be a growing number of claims by parents relating to negligent sterilization and negligent perinatal (during pregnancy) care and monitoring. The Canadian Medical Protective Association's concern over rising insurance premiums as a result of growing obstetrics malpractice claims was reported in an October `97 Globe and Mail article, "Medical mal-practice system facing major collapse - huge awards to children damaged at birth cause premiums to soar". Also attracting a great deal of attention are the recent cases which have addressed the issue of fetal rights. The Edmonton Journal reported in November `97 on the case of a disabled child born with cerebral palsy stating "Fetal rights on trial as disabled boy sues mom over prenatal injuries".

While there appears to be some confusion over the meaning of wrongful birth, wrongful life, 13 and wrongful pregnancy, an Ontario Court in a recent decision clarified the distinction between the terms and provided the following definitions:

* Wrongful birth - involves cases where a child is born with birth defects following a planned pregnancy.

* Wrongful life - arises in those cases where a child is born with defects but the parents have been denied the opportunity to end the fetus' life due to a doctor's negligence.

* Wrongful pregnancy - arises in cases where a physician's negligence has resulted in an unwanted pregnancy; for example, where a sterilization procedure has been negligently performed.

Recently, the number of wrongful birth, wrongful life, and wrongful pregnancy actions appear to be more prevalent. The courts are being challenged to make difficult decisions involving the rights of the unborn fetus and the rights of the parents and mother.

Wrongful pregnancy

In a recent medical malpractice case, Kealey v. Berezowski, the parents of two healthy children sued their physician for negligently performing a sterilization. The parents requested a sterilization procedure but later found that they were to be the parents of yet another child. The parents, although financially capable of raising the child, sought damages for wrongful pregnancy. The Ontario Court awarded damages for lost income for special damages and the mother received $30,000 in compensation for general damages relating to the failed sterilization, pregnancy, labour, delivery, and having to undergo a second tubal ligation procedure. However, it refused to award damages for cost of child-rearing.

The Court alluded to the fact that "[I]n Canada, there is no unified approach to the award of damages for wrongful pregnancy nor to the extent of the damages". In reviewing the Canadian, English, and American approaches taken in wrongful pregnancy cases, the Court identified three general approaches to awarding damages:

* The total recovery approach: here a court will make an award for "all reasonably foreseeable damages based on ordinary principles of recovery in tort law." The award would provide compensation for the costs associated with the birth of the child and the costs of raising that child.

* The offset/benefits approach: here the costs associated with the birth and raising of the child are permitted, but the damages are offset by the benefits received by the parents as a result of the birth and raising of the child.

* The limited damages approach: the approach allows for damages relating to the unplanned pregnancy but does not compensate for the unplanned child.

After reviewing the case law, the Court determined that in cases where child-rearing costs were awarded, there was usually a finding that the birth had caused some harm to the parents. The Court gave the example of the situation where a sterilization was requested for financial reasons and further economic hardship resulted due to the birth of the unplanned child. The Court reasoned that whatever the approach used to decide what the damage award should be, each approach has some drawbacks.

Wrongful birth

In H. (R.) v. Hunter, a mother of two children who were born with Duchenne muscular dystrophy, a degenerative genetically transmitted disease which results in reduced life expectancy, alleged that her physicians were negligent in failing to refer her for additional genetic counselling or monitoring before she bore children. The mother had a family history of the genetic disorder and was under the care of two physicians when she delivered her first child and the second child two years later. The parents argued that the transmission of the disease could have been avoided by abortion or contraceptive precautions. The mother received $130,000 in general damages for both children. In total, the parents received $2,918,965 in damages. The decision acknowledged that damages for pain and suffering were warranted in wrongful birth cases. The Court recognized the extremely high cost of care (approximately 1.9 Million) that their children would require as a result of the disease.

In a recent 1998 decision, Oliver (Public Trustee of) v. Ellison, the mother brought a medical malpractice action related to injuries sustained by her as a result of negligent medical care and treatment given during pregnancy and at the time of birth. Her child was born with cataracts and mild cerebral palsy. She sought damages for her own injuries and the cost of care of the disabled child. A prior out-of-court settlement was reached which compensated for the child's injuries. The mother alleged that her general practitioner did not diagnose and control her gestational diabetes condition throughout her pregnancy. The uncontrolled gestational diabetes resulted in a large-for- gestational-age infant. It was also alleged that her obstetrician failed to provide optimal perinatal care, and that the nurses and other hospital staff acted negligently during the labour and failed to monitor and assess the infant's health in the post-delivery.

The Court found that the evidence failed to establish that the hospital and nursing staff were negligent in the care they provided. While there was some negligence on the part of the doctors, the plaintiffs did not prove on a balance of probabilities that the doctors' negligence caused the injuries. This prevented the court from awarding damages.

Fetal Rights

In November of 1997, a case involving a pregnant Winnipeg woman addicted to glue sniffing made national headlines. The country watched as the woman jeopardized the health of her fetus as a result of her addiction. Despite the public outcry to force the woman into a treatment centre for her addiction, the Supreme Court of Canada ruled that it did not have the power to dictate a woman's behaviour during pregnancy. The Court struggled with whether a fetus has rights at law and whether limits should be placed on the mother's rights. The ruling confirms previous decisions where the Courts have ruled that a fetus has no legal rights.

While the fetus may have no rights while in utero, recently there has been a suggestion that the rights of a fetus may be suspended until birth. The New Brunswick Court of Appeal decision in Dobson (Litigation guardian of) v. Dobson held that a disabled child could sue his mother for injuries sustained while a fetus. The mother was involved in a car accident at 27 weeks gestation and required a Cesarean section. The child alleged that his mother's negligent driving resulted in permanent mental and physical impairment. In deciding that the child could advance an action for his pre-natal injuries, the Court reasoned, "... if an action can be sustained by a child against a parent, and if an action can be sustained against a stranger for injuries suffered by a child before birth, then it seems to me a reasonable progression to allow an action by a child against his mother for pre-natal injuries caused by her negligence...

The present state of the decided law, then, is that although a fetus is not recognized in law as a person, certain rights do accrue and can be asserted upon being born alive. It may be termed a suspended right or one which is crystallized at birth. While the injury may have been sustained by the fetus - at law, still part of the mother, the damages sued for are the damages suffered by the plaintiff since birth."

The action brought by the child against his mother for his pre-natal injuries was allowed to proceed, suggesting that fetal rights may be retroactive or suspended until birth. In addition to the duty owed to the general public to drive carefully, it was also held that the same duty was owed to a mother's unborn children. The Court reasoned that if "the child suffers injury during his or her lifetime as a result of his mother's negligent driving during pregnancy, there is no reason that the child should not be able to enforce his or her rights.

The decision of the New Brunswick Court of Appeal has been appealed to the Supreme Court of Canada. The highest Court in the land will make a ruling as to the legal capacity to commence an action in negligence for injuries which were sustained while a fetus.

Conclusion

Actions alleging medical malpractice involving wrongful birth, wrongful life, and wrongful pregnancy are on the rise. The courts have recognized parents' rights in relation to these wrongful acts. Admittedly, the calculation of damages is not an easy task, but the courts have attempted to provide reasonable compensation to the injured parties. Speculation surrounding whether a child may sue his or her mother for injuries sustained while a fetus will soon be decided by the Supreme Court of Canada. The decision could influence the lifestyle choices a woman makes during pregnancy.

Laura Zurowski is a Student-at-Law with the firm of Milner Fenerty in Edmonton, Alberta.