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Can you bring a claim arguing you should never have been conceived?

Posted on 08th December 2021 in Medical Negligence

Posted by

Michelle Beckett

Associate and Solicitor
Can you bring a claim arguing you should never have been conceived?

The short answer is yes.

Recently, Evie Toombes has won her legal battle against her mother’s GP arguing that she should never have been conceived and the costs associated with her disability should be paid by the Defendant.

Evie Toombes was born 20 years ago and sadly suffers from spina bifida meaning that she spends time connected to tubes, she is doubly incontinent and her already limited mobility is likely to deteriorate further. Despite her limitations she manages to compete in para and able bodied show jumping and spends time raising awareness and sharing her journey.

The case that Ms Toombes brought had to determine whether a claim of this type was permissible. Before the claim was brought the law was such that when child is born with disabilities:

  1. A child’s parents can bring a claim for what is called ‘wrongful birth’ for the costs associated with bringing up a child with a disability if the child would not otherwise have been born; but
  2. The disabled person could not sue for wrongful life if the argument is that the person would not have been born if there was no negligence.

Based upon the above, specifically number 2 on the face of it, Ms Toombes would not be able to bring a claim herself had her argument been that her mother’s pregnancy with her would have been terminated had they known she had spina bifida.  However, Ms Toombes’ case was not surrounding the advice that her mother was given during her pregnancy but instead, what she was told prior to her conception.

Prior to getting pregnant, Ms Toombes’ mother sought pre-conception advice from her GP and specifically asked about folic acid. She was advised that folic acid was not necessary and therefore proceeded to conceive Ms Toombes without taking folic acid.  The Court found that if correct advice was given then she would have delayed getting pregnant so she could take the supplement.   It was agreed that had conception been delayed, a baby without Spina Bifida would have been conceived.

The Court held that this was a claim for wrongful conception rather than wrongful life and the claim was successful.

The decision made by the court does open the door for a disabled person to be able to sue for the costs of their disability but the criteria for this is strict and the person would have to prove:

  • Negligent advice was given
  • The advice was given pre-conception (as opposed to during the pregnancy - the parents could bring a claim in these circumstances)
  • Had the negligence not occurred then a healthy child would have been born (it is important to note that if the child would have been disabled even had the correct advice been given then they would not be able to bring a claim)

 

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