Genes, justice and the law: the disabled child and liability for negligent antenatal genetic diagnosis

Alasdair R. Maclean

    Research output: Contribution to journalArticle

    Abstract

    Antenatal genetic testing offers prospective parents the opportunity to make more informed decisions and supports reproductive autonomy. However, this is undermined where the test is negligently performed or where the parents are negligently provided with inaccurate information. The consequence may be the birth of a child affected by the very genetic condition that the parents were trying to avoid. Such children come with a heavy financial burden and the question arises whether the parents should be able to shift some, or all, of the costs to the profession whose negligence resulted in the birth of an affected child. A similar question arises in relation to the burden facing the affected child. In this article I explore the three related claims for wrongful pregnancy, wrongful birth and wrongful life, any of which may arise in these circumstances. I consider the implications of the recent series of wrongful pregnancy cases and I argue that the House of Lords? decisions in McFarlane v Tayside HB and Rees v Darlington Memorial Hospital NHS Trust logically require future courts to reject claims for the additional costs associated with a child?s condition. However, the award of a conventional sum would mitigate the harshness of this position. Furthermore, the recent reliance on distributive justice re-opens the possibility of a successful claim for wrongful life. Awarding the child compensation would be a more secure way of ensuring substantive justice than the current position, which allows the parents? claim, but rejects any suit brought by the child.
    Original languageEnglish
    Pages (from-to)153-182
    Number of pages30
    JournalContemporary Issues in Law
    Volume9
    Issue number3
    Publication statusPublished - 2008

    Keywords

    • Clinical negligence
    • Diagnosis
    • Genetic testing
    • Wrongful birth
    • Wrongful conception

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