Wrongful life

chunkylover4

Does anybody know if there are any statutory provisions regarding negligence in a sterilisation procedure?

Also Does anybody know of an Irish case where wrongful birth/life has been an issue post 2005?

McCrack

If a woman underwent sterilisation or a man had a vasectomy and subsequently conceived or impregnated a woman then yes there is a cause of action against the surgeon and/or clinic.

Ordinary medical negligence principles apply and there are no statutory provisions applicable. There are no caselaw to my knowledge directly on the issue as these cases are pretty open and shut. There was a reported decision regarding claiming for Special Damages for the cost of raising the child but the court didn't entertain this for public policy reasons. The name of the case escapes me.

Contact a personal injury solicitor ideally specialising in medical negligence for advice.

chunkylover4

thanks, it seems unlikely that the courts would ever entertain such a case due to the positive duty to protect life in the constitution. (this is a hypothetical situation, not a real case btw)

drkpower

McCrack wrote: »

Ordinary medical negligence principles apply and there are no statutory provisions applicable. There are no caselaw to my knowledge directly on the issue as these cases are pretty open and shut. There was a reported decision regarding claiming for Special Damages for the cost of raising the child but the court didn't entertain this for public policy reasons. The name of the case escapes me.

The case is Byrne v Ryan. It concerned a failed tubal ligation. Special Damages for bringing up a child are not recoverable.

The judge allowed about €35K for the 'pain and suffering' of pregnancy (although apparently the pregnancy had more compplications than most). However, the defence in that case had conceded that in the event of a finding of negligence the plaintiff was entitled to damages for the pain, suffering and inconvenience of pregnancy and childbirth together with any special damages for extra medical expenses involved. The judge specifically stated that the question of principle as to whether there is in law an entitlement to such damages will have to await another case where a concession such as the one made in this case is not forthcoming.

So there is no right to special damages for bringing up the child.
And there may not be a right to general damages.

MagicSean

drkpower wrote: »

The case is Byrne v Ryan. It concerned a failed tubal ligation. Special Damages for bringing up a child are not recoverable.

The judge allowed about €35K for the 'pain and suffering' of pregnancy (although apparently the pregnancy had more compplications than most). However, the defence in that case had conceded that in the event of a finding of negligence the plaintiff was entitled to damages for the pain, suffering and inconvenience of pregnancy and childbirth together with any special damages for extra medical expenses involved. The judge specifically stated that the question of principle as to whether there is in law an entitlement to such damages will have to await another case where a concession such as the one made in this case is not forthcoming.

So there is no right to special damages for bringing up the child.
And there may not be a right to general damages.

If the child had been born with a hereditary defect of some kind i wonder would things have been different at all.

drkpower

MagicSean wrote: »

If the child had been born with a hereditary defect of some kind i wonder would things have been different at all.

Quite possibly.
The Byrne judgment refers repeatedly to a 'healthy' child and part of the rationale was that the joys of having and bringing up a healthy child could not, on policy grounds, ground a claim for negligence.
If special damages were recoverable, they could only be for the 'extra' costs of bringing up a 'disabled' child presumably.

Although, if recoverability was allowed, would the implication not be that having a disabled child was not a 'joy' comparable to having a healthy child? The judgment would need to dance around that issue particularly delicately!

valleyoftheunos

drkpower wrote: »

Quite possibly.
The Byrne judgment refers repeatedly to a 'healthy' child and part of the rationale was that the joys of having and bringing up a healthy child could not, on policy grounds, ground a claim for negligence.
If special damages were recoverable, they could only be for the 'extra' costs of bringing up a 'disabled' child presumably.

Although, if recoverability was allowed, would the implication not be that having a disabled child was not a 'joy' comparable to having a healthy child? The judgment would need to dance around that issue particularly delicately!

It's been a while since I covered this but I seem to recall that Special damages for the extra cost of raising a disabled child were awarded by the English courts, I may be entirely wrong though, one to look up.