I underwent a sterilisation procedure 4 years ago because my partner and I did not want any more children. Last year I unexpectedly fell pregnant and realised the doctor that performed my sterilisation must have been negligent. I gave birth to a healthy boy and while I am happy he is here I certainly did not plan for his arrival and am concerned about the costs of raising him. Can I sue the doctor for wrongful birth?
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Answer by Shamaila Khan, Kingsville 3012 VIC
- It depends on where you are. A similar scenario was tested in the Australian High Court recently. This case saw the court award damages to the parents of a child that was healthy but not planned for and whose existence was solely due to the negligence of the doctor performing a tubal ligation on the mother.
- In that case it was found that the child could be considered ‘damage’ for the purposes of the law in the sense that the cost of raising him would certainly leave the parents ‘worse off.’
- Damages were awarded to assist with the costs of raising a child the parents did not plan for.
- Following this decision the NSW, SA and QLD governments introduced legislation to overturn the decision and its effects essentially eliminating the possibility for parents to obtain compensation for the wrongful birth of a healthy child.
- In other jurisdictions it is still possible to claim damages for economic losses suffered due to an unintended child caused by professional negligence.
- You need to check the relevant legislation in your state or territory as the rules are different in each jurisdiction.