Another recent Australian case highlights parental responsibility from a different angle. The High Court has upheld a Queensland decision awarding parents substantial damages when failed sterilisation procedures resulted in the birth of a healthy child.

In Cattanach v Melchior [2003] HCA 38, a couple, who already had two daughters, decided that they did not want any more children. The wife underwent a sterilisation operation. Prior to the operation, the wife told her gynaecologist that her right ovary and fallopian tube were both removed during an appendectomy operation when she was a child. The gynaecologist arranged for the wife to undergo an ultrasound during which he noted that the wife’s right ovary and fallopian tube were absent, concluding that this was consistent with the wife’s statements. The gynaecologist proceeded to clip the left fallopian tube only. The gynaecologist had, in fact, failed to see the right fallopian tube as it was obscured by adhesions caused by the earlier appendectomy operation. The gynaecologist did not advise the wife that she might conceive as a result of the continued existence of the right fallopian tube. The wife did not take contraceptive measures, became pregnant and ultimately gave birth to a healthy son. The couple sued the gynaecologist and the state of Queensland for negligent medical advice.

The trial judge and the Court of Appeal of Queensland found that the doctor and the health authority were negligent, awarding damages to the plaintiffs which included the costs of raising and maintaining the child. On appeal, the High Court was asked to consider whether the Court of Appeal had erred in awarding damages that included the costs of raising and maintaining the healthy child.

The majority of the High Court held that the Court of Appeal was correct in allowing for damages for the cost of raising and maintaining the child. The High Court considered public policy arguments and health insurance issues to conclude that the costs of raising and maintaining a child were a direct consequence of the negligent act and recoverable. Arguments that the child would suffer emotionally, feel unwanted and a burden if damages were awarded under this heading were rejected. Similarly, social arguments that a healthy child is a “blessing” with the burdens being outweighed by the joys were considered too subjective and speculative. Two of the judges commented that the term “wrongful birth” was misleading, stating that it was the negligence of the gynaecologist that was wrongful and the subject of the proceedings, not the resulting birth of the child.

The outcome of this case has led to widespread discussion and criticism, prompting the Queensland government to consider legislation to counter its effects. The developments as a result of this landmark decision will be worth watching.