Overview:

• What is a wrongful birth claim?
• What compensation can be claimed?
• what other actions can arise from a wrongful birth?
• what should you do if you think you're entitled to compensation?

In Queensland, New South Wales and South Australia, a parent can claim compensation for the reasonable costs associated with a child’s disability if that child has been wrongfully born due to negligence. This is what is known as a “wrongful birth” claim.

What is a wrongful birth claim?  

A wrongful birth can arise in the following situations:

• Failed Sterilisation:  Where a medical practitioner has negligently performed a sterilisation procedure. Such as tubal ligation or vasectomy, resulting in that parent unknowingly still being able to conceive; 
• Failed Contraception: Where a medical practitioner has been negligent when implementing contraception methods. Such as incorrect placement of an IUD or providing the wrong advice concerning oral contraceptives; or
• Failure to diagnose in-utero abnormality: Where the parents would have terminated that pregnancy if they had been made aware of the in-utero abnormality.

In Australia, a child cannot bring a claim for wrongful life. The cause of action lies with the parents of the child, and in New South Wales, Queensland and South Australia, only the additional costs of raising a wrongful birth child with disabilities is compensable.

What damages are awarded in a wrongful birth claim?

In Queensland, s49A and s49B of the Civil Liability Act 2003 outlines that economic loss associated with the costs ordinarily attributed to the rearing and maintaining of a child cannot be claimed. This limits the damages that can be claimed in a wrongful birth claim to the additional costs of caring, rearing, feeding, clothing and educating a disabled child.

This means that if a healthy child is wrongfully born (e.g. conceived due to a negligent sterilisation procedure, however, born healthy), a wrongful birth claim cannot be made in Queensland. This is based on the notion that the birth of a healthy child is not considered to be “an injury”, and consequently, damages cannot arise.  

Therefore, in Queensland, an entitlement to compensation from wrongful birth only arises where a disabled child is born. Similar legislation exists in New South Wales and South Australia.

In other jurisdictions, such as Victoria, Western Australia, Tasmania and the territories, the common law still applies (Cattanach v Melchior (2003) 215 CLR 1). Therefore, no such restriction exists with respect to the compensation that may be awarded to a parent of a wrongful birth child.

What is a nervous shock claim arising from wrongful birth?

In addition to claiming compensation associated with the wrongful birth of a child, a parent may be entitled to a claim for nervous shock. 

Compensation for nervous shock damages is separate from the damages that can be claimed by the parent(s) for rearing a wrongful birth child. To be entitled to compensation for nervous shock, a claimant must suffer a recognised psychiatric illness as a direct result of witnessing the incident (i.e. the wrongful birth), which must be assessed and diagnosed by an independent psychiatrist. 

The compensation that may be awarded in a nervous shock claim falls under the following heads of damage:

• General damages/non-economic loss;
• Economic loss; 
• Medical treatment and out of pocket expenses; and
• Care & assistance. 

For further information on these heads of damage, see our previous article here.  

What to do if you believe you may be entitled to compensation for a wrongful birth incident? 

You only have three years from the date of negligence to bring a personal injury claim in Queensland. If you believe you may be entitled to compensation for a wrongful birth incident, contact our office for a free initial discussion here.