![handle is hein.journals/medlgjr71 and id is 1 raw text is:
Medico-Legal Journal (2003) Vol. 71 Part 1, 1
D Medico-Legal Society 2003
Editorial: Damages for Unwanted Healthy
Child Awarded to Physically Disabled Mother
But Not to Mentally Handicapped Mother
Diana Brahams
In November 1999, in McFarlane v Tayside Health
Board [1999] 4 All ER 961, the House of Lords
reversed the long-standing practice of awarding
damages to compensate the parent(s) for the cost of
bringing up and educating a healthy child born as a
consequence of medical or other negligence.
However, a personal injury inflicted in consequence
of the unwanted birth was compensatable. The
House of Lords left the door open (or perhaps ajar)
in respect of damages that could be awarded if the
child was not healthy and fit but handicapped. In
February 2001, the Court of Appeal ruled in
Parkinson v St James & Seacroft University Hospital
NHS Trust [2001] 3 All ER 97 that damages for the
special needs element in raising and caring for a
disabled child born in consequence of negligent ster-
ilisation were recoverable. One year later (on 14
February 2002), [2002] All ER (D) (Feb), the Court
of Appeal in Rees v Darlington Memorial Hospital
NHS Trust went further. It awarded damages to pay
for the extra costs of bringing up an unwanted
healthy child by a disabled mother (limited vision
due to retinitis).
Palmer, writing in All England Legal Opinion,
issue 17, April 2002, argues that on one view this
decision is directly contrary to McFarlane. Indeed,
though the door was not slammed tightly shut in
McFarlane, it is certainly arguable that by awarding
parents damages for having to care for a disabled
unwanted child, that the law has distinguished
between healthy, normal children and all others.
Similarly, if the parents are disabled, then in truth
they may have to employ help to care for their chil-
dren, but then again so might a parent who was not
disabled. Indeed, the defendant in Rees contended
that:
everyone who seeks sterilisation may be assumed
to have a good reason for not wanting another child
... there is no justification for treating a person
whose reason is founded on a disability as an
exception.
The Court of Appeal's recent judgment in D v East
Kent Community NHS Trust, 17 December 2002,
CA, which dismissed the appeal of a mentally hand-
icapped mother for the costs of raising her unwanted
but healthy child by the child's maternal grand-
mother, has muddied the waters further. The case
was decided as a preliminary issue. The claimant's
case was that by admitting her to a mixed ward and
failing to sterilise her or otherwise protect her from
becoming pregnant, the claimant had become preg-
nant due to negligence and was entitled to damages
for the cost of raising, maintaining and educating the
child. The problem was nexus. The mother was not
fit to raise her child who was being brought up by her
grandmother and thus having no money to pay her
had paid none and suffered no loss. The child had no
claim as such and the grandmother had no action
against the defendant. However, this seems to work
unfairly in practice as it is surely foreseeable that in
this type of situation it would be the child's maternal
grandmother who would be responsible for caring
for the child if he/she were not to be adopted or
fostered outside the family.](ViewImageLocal?handle=hein.journals/medlgjr71&div=1&collection=&method=preview&ext=.png&size=3)
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