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13 Soc. & Legal Stud. 5 (2004)

handle is hein.journals/solestu13 and id is 1 raw text is: JOY TO THE WORLD! A (HEALTHY) CHILD IS BORN! RECONCEPTUALIZING 'HARM IN WRONGFUL CONCEPTION NICOLETTE PRIAULX University of Kent, UK ABSTRACT The wrongful conception action holds both a troubled past and future. As a response to rapid technological advancement in the area of reproduction, this action has introduced complex legal and ethical issues in the courts' efforts to respond to the question: 'Can parenthood ever constitute an injury?' At the heart of this dilemma lies the manner by which both law and society conceptualize 'harm' - is this 'part of the normal vicissitudes of life' or a harmful event? But this question is not decided within a legal vacuum and public policy factors have deeply influenced the nature and existence of case law in this field. In the context of the controversial cases of McFarlane v Tayside Health Board [2000] and Rees v Darlington Memorial Hospital [2002], this article critically examines how 'harm' is judicially character- ized and explores the various tensions emerging from conflicting harm constructs. In arguing that the courts must seek to find a balanced approach between public policy concerns and reproductive autonomy, this article will present a fresh theor- etical perspective to the conceptualization of harm based on autonomy as the central organizing principle. INTRODUCTION HE INCREASING medicalization of women's sexual and reproductive health remains a controversial issue in feminist scholarship. The natural functioning of women's bodies, menstruation, pregnancy, childbirth, and menopause, while not experienced as 'illnesses', have nevertheless been redefined as medical problems and subsumed within the jurisdiction of medicine as necessitating surveillance and intervention (Nott and Morris, 2002). The growth of reproductive technology and genetic knowledge means SOCIAL & LEGAL STUDIES Copyright © 2004 SAGE Publications London, Thousand Oaks, CA and New Delhi, www.sagepublications.com 0964 6639, Vol. 13(1), 5-26 DOI: 10.1177/096466304040190

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