4) Wrongful Pregnancy

This action arises where the defendant's negligence is a cause of the plaintiff's pregnancy. It arises most commonly from negligently performed sterilization, but it may also be brought in respect of an unsuccessful abortion and defective contraceptive products. On learning of her unplanned pregnancy, the plaintiff has three options: to terminate the pregnancy, to continue the pregnancy and raise her child, or continue her pregnancy and put her child up for adoption. Each of these options may generate losses, such as a loss of income during the pregnancy, expenses associated with terminating a pregnancy, non-pecuniary losses, and, in cases of failed sterilization procedures, expenses associated with remedial procedures. These kinds of losses are normally recoverable. The single contentious issue is whether or not a mother who chooses to raise her child can recover child-raising costs and expenses.

This issue has arisen in cases where the plaintiff has given birth to a healthy baby, but nothing but quantum depends on the health of the child. There are a number of competing approaches to the issue of child-raising costs. The first view is that such expenses should not be recoverable at all. It is argued that the birth of a child, particularly a healthy child, is a joy and a blessing and should not be construed as a legally recognized loss. Moreover it may not be in the interests of the child to learn in due course that, not only was he unplanned, but he is also financially supported by a third party, which in many cases would be the Canadian Medical Protective Association, which insures most Canadian physicians. The House of Lords adopted this approach in McFarlane v. Tayside Health Board [Note 39: [1999] 4 All E.R. 961 (H.L.) [McFarlane].] where a healthy child was born as a consequence of a failed vasectomy. The Court, which characterized the claim as one for pure economic loss, held that it was not fair, just, or reasonable to hold the defendant liable for child-raising costs. The second view is that child-raising costs should be recoverable but the damages must be offset or discounted to recognize the emotional and other benefits derived from the child. This process may reduce the damages substantially. [Note 40: This approach was rejected in McFarlane on the ground that it was impossible to monetarily calculate the benefits provided by the child.] The third view is that child-raising costs should be compensated in full. This view promotes the deterrent and compensatory functions of tort law and recognizes that, for families in poorer socio-economic circumstances, an additional child may impose a substantial financial hardship affecting all of its members. The fourth approach, adopted in Kealey v. Berezowski, [Note 41: (1997), 30 O.R. (3d) 37 (Gen. Div.) [Kealey].] examines the plaintiff's reasons for not wanting to have a child. If the decision was purely a life- style choice and the unplanned child poses no financial or emotional burden to the family, no legally recognized harm has been suffered and no award of child-raising costs will be made. On the other hand, if the decision was made on financial grounds, or to protect the mother's health, or to prevent the transmission of hereditary abnormality or illness, the birth of a child may be harmful (an injury) and child-raising costs may be recoverable. In Kealey, a case of a failed tubal ligation, the decision not to have any more children was a lifestyle choice and no child-raising costs were awarded. This approach presents some difficulties. It may be difficult to apply where the plaintiff had a number of reasons contributing equally to her decision. It also encourages a plaintiff to reconstruct her motivation in a way that promotes her chance of recovering damages. As yet the Canadian courts have shown no clear preference for any one of these approaches but the recent decision of the House of Lords in McFarlane may prove to be influential.

It may be suggested that an award of damages for child-raising costs should be reduced on the ground that the plaintiff could have mitigated her loss by terminating her pregnancy or by putting her child up for adoption. The decision faced by the mother is, however, so intensely personal and emotional and is so often driven by moral and religious principles that it would be highly unlikely that a mother's decision to raise her child would ever be characterized as an unreasonable failure to mitigate her loss. In McFarlane the point was dismissed summarily.

Two unusual cases suggest that any liability for wrongful pregnancy will be kept within fairly narrow boundaries. In Goodwill v. British Pregnancy Advisory Service, [Note 42: [1996] 1 W.L.R. 1397 (C.A.).] a case decided before McFarlane, the defendant negligently performed a vasectomy on a married man who, subsequently, had an affair with the plaintiff. The plaintiff refrained from the use of her usual contraceptive measures, relying instead on her partner's sterility. She sued for expenses associated with the birth of her healthy child, loss of income, and the cost of raising her child. The English Court of Appeal held that she could not recover any of these losses. There was insufficient proximity between the defendant and the sexual partners of his patient, other than his wife, to support a duty of care. In Freeman v. Sutter [Note 43: [1996] 4 W.W.R. 748 (Man. C.A.).] an action was brought solely by the father of the child. The child's mother was not a party to the litigation. He was the mother's boyfriend at the time of conception but they subsequently split up. The mother had initially sought an abortion but because of the negligence of the defendant physician it was unsuccessful. This act of negligence was compounded by the negligence of the second defendant who failed to diagnose the continuing pregnancy until terminating the pregnancy was no longer an acceptable option to the mother. The plaintiff sought, unsuccessfully, to recover his child maintenance costs against the defendant physicians. The Manitoba Court of Appeal held that the defendants owed no duty of care to the plaintiff. He was not their patient, he had not consulted them, and he had received no advice from them. [Note 44: See also Kovacvich v. Ortho Pharmaceutical (Canada) Ltd. (1995), 9 B.C.L.R. (3d) 14 (S.C.).]

CHAPTER 3, SPECIAL TOPICS IN NEGLIGENCE