Everything You Need to Know About Wrongful Birth

*In this collaborative post, the term Wrongful Birth is explained and explored.

Wrongful birth may seem like a pretty nonsensical word, but it’s actually a pretty gritty area of law. Discover more, and what you’re entitled to as a parent, here…

Wrongful birth is a difficult position to be in for any couple. You’ve expressed your wish to not have a child and a medical professional has denied you that right to choose through some sort of negligence.

Whether you were financially or emotionally unable to care for a child, it can be a really tricky position to be in. The only consolation is to claim for wrongful birth compensation in order to make sure the NHS is held accountable for its mistake. No parent wants their child to grow up in a financially or emotionally unstable home, so this will also help you pay for the raising of the child.

Although it’s certainly a hefty topic, education is the key to making sure we make the most of our legal rights. So, we’re going to explain what a wrongful birth is, whether you can claim compensation for it, how much you can claim, and what the compensation can actually be used for. If you think you may be triggered by this topic, do what’s best for you.

What is a Wrongful Birth?
In the UK, wrongful birth is a legal term referring to the birth of a child who wouldn’t have been born if it weren’t for the negligent treatment of healthcare professionals.

Your GP, midwife, obstetrician and other healthcare professionals involved in the birth have a duty of care which extends to keeping you informed of any new developments. If their standard of care falls below this, and you give birth to an unwanted child as a result, the parents can pursue a legal claim against them.

So, how can medical negligence lead to this happening? There are two common scenarios that these wrongful birth cases tend to fall under:
1. If a doctor fails to identify a congenital condition or disability in the baby that they could’ve detected before birth, a wrongful birth claim can be made. The thought process behind this is that if the parents had known, they would’ve terminated the pregnancy, but that option was taken away from them because the doctor failed to spot the condition.
2. A more direct result of wrongful birth is a failed vasectomy or sterilisation that led to an unintended pregnancy and birth.

If you meet either of these conditions, you have a pretty strong medical negligence claim against the body responsible.


Can I Claim Compensation for a Wrongful Birth?
Compensation can be claimed for wrongful birth if you meet either the congenital condition or vasectomy and sterilisation scenario. Even so, the claim will depend on the exact circumstances and whether or not you can prove the medical professional was negligent.

Congenital Conditions and Disabilities-
If your child was born with a genetic condition or disability that should’ve been detected during pregnancy and you would’ve terminated the pregnancy had you known, then you have a pretty strong claim for wrongful birth damages. The types of conditions the doctor should be able to diagnose during pregnancy include:
· Spina bifida
· Down’s syndrome
· Limb defects
· Heart defects
· Cystic fibrosis

It’s the responsibility of your healthcare professional to detect these conditions during pregnancy so they can inform you of the risks. It’s your right to make an informed decision over whether you want to keep the baby. So, if you didn’t have access to all the information because of negligent medical care it’s their responsibility.

To be clear, no-one is saying that the child is unwanted, as once the baby is born of course the parents love it as much as they would love any child. It’s more the fact that, at the time, you were denied your right to choose through no fault of your own.

Vasectomies and Failed Sterilisations

When people are done having children, or they never wanted any in the first place, they get vasectomies or sterilisations to prevent them from having children. If that right is taken away from you because the procedure wasn’t successful, and you had a wrongful birth as a result, the fault lies at the feet of the professionals who carried out the procedure.

The actual surgical procedure isn’t the only time a medical professional can cause a wrongful birth. The failure of the procedure can also be caused by the professionals not properly informing you of the risks, such as how having unprotected sex in the first 12 weeks after a vasectomy can cause pregnancy.

You can’t actually make a claim if you’ve had a healthy baby. The only damages you can claim are from emotional stress and trauma from the pregnancy itself, or from having to undergo a second sterilisation or vasectomy.

How do I Prove it was Negligence?
If you want to prove that the birth was caused by negligent care, you need to show that:
· The standard of care fellow below what’s expected of a medical professional;
· This substandard care is the reason you got pregnant or had a child;
· If you hadn’t received this substandard care, then you never would’ve gotten pregnant or had the child.

The actual evidence you need to prove these three points is something you need to speak to a medical negligence lawyer about. They are more qualified to make this argument on your behalf. These solicitors usually confer with independent medical experts to conclude whether the level of care was substandard, and whether what the needs of your child are if they were born with a condition.

How Much Compensation Can You Claim for Wrongful Birth?
There’s no set amount of compensation for wrongful birth claims, as it depends entirely on your individual circumstances. However, when you speak to a solicitor, they’ll be able to assess your needs and how much you could be entitled to.

Like we said in the last section, for wrongful birth of a child with a genetic condition or disability, you might need significant care which can sometimes cost a lot of money. To pay for this care you might be awarded hundreds of thousands, or even millions, of pounds to provide for the future of your child.

As we’ve mentioned, with a vasectomy or sterilisation claim, you aren’t entitled to money for the upbringing of your child. It’ll just be for the emotional pain of pregnancy or birth, and of going through a second sterilisation procedure.

At the end of 2019, the  NHS awarded compensation to a mother after her son was born with down’s syndrome. Edyta Mordel told the High Court she would’ve had an abortion if she’d known about the condition during pregnancy, and the NHS had to pay out a six-figure compensation for the wrongful birth claim. To put that example into context, in 2017 the NHS revealed that they’d paid out £70 million in compensation to parents who would’ve aborted their child had they known about their condition.

Is There a Time Limit for Claiming Wrongful Birth Compensation?
In case you’re reading this article, and it’s been a long time since you had your child, and you didn’t realise you could make a claim for wrongful birth, the standard time limit for bringing a case is 3 years from either:

· The date of birth
· The date you became aware of the negligence

So, if it’s been more than 3 years since your child was born, but you’ve only just realised that the doctors should’ve diagnosed your child with a condition in pregnancy, you can still technically make a wrongful birth claim today.

How Long Does it Take to Receive Compensation?
These cases aren’t easy to prove, and it takes a while for them to actually make it to their completion. This is because the cases involve children, often with complex health needs, that have to be collated by your lawyers and assessed in court.

The only time it will be resolved quickly is if the healthcare provider chooses not to fight the wrongful birth claim and admits liability early on. This cuts out the investigation into the standard of treatment, and shaves a considerable amount of time off the case.

What Can Wrongful Birth Compensation be Used For?
So, we’ve touched on the fact that the compensation will provide for your child if they have a genetic condition or disability. It will also cover pain and suffering for pregnancy and birth if it’s a sterilisation issue, but what can the compensation actually be used for? The main things you’ll end up using the wrongful birth compensation for are:

· Physical or emotional pain and suffering;
· Loss of earnings, or the capacity to earn, if you have to take time off work for the pregnancy or to raise a child with a disability;
· The loss of ability to decide how large a family you want, as you now have an extra child to look after that you hadn’t planned for;
· The actual costs of caring for a disabled child, such as any special equipment, therapies they need, and even home adjustments or moving to an adapted property;
· Travel costs to and from medical appointments, either for a disabled child or for your pregnancy or re-booked sterilisation;
· The actual cost of the vasectomy or sterilisation procedure itself.

There are other ways the money could be spent, but your means will be assessed in court and will determine how much compensation you will receive.


Where Do You go From Here?
We’ve managed to cover a lot of ground in this post. We’ve discussed what wrongful birth is, whether you can actually claim compensation in the first place, how much you might be entitled to, and where you can spend the money if you manage to win your case.

The only thing left to do now is decide whether you meet the conditions to raise a wrongful birth claim based on what you’ve read here. If you think you might, speak to a solicitor if you choose to go ahead with one.

Although this was certainly a triggering topic, learning about these things in more detail will help you to get the compensation you require. Hopefully, now, you have a better understanding of what wrongful birth is, and are better able to decide whether to take the next step or not. Thank you for reading, and good luck with your case!