This is a legal term used where a claim is being brought by parents, where there have been failures by the treating clinician, in relation to their child, who has been born. Such a claim can only be brought if the parents can prove that the child’s birth was unintended.
Prospective parents have the choice of getting medically tested to seek medical assurance that their child will be born healthy. A failure to carry out the testing or failure to provide parents with the correct information, could lead to a wrongful birth compensation claim.
Prospective parents can also make a claim for wrongful birth or sometimes called wrongful conception, where there has been a failed sterilisation or vasectomy. If a child is born with a disability or deformity, this can create a financial strain on both parents, of raising that child.
Where a child is born with serious health conditions, this can be extremely difficult for both the child and the family.
Wrongful birth claims, fall into two main categories
- Failed sterilisation or vasectomy – this is where the procedure carried out has been unsuccessful and failed, resulting in an unplanned child being born. This is a claim of a child being born, that otherwise would not have been able to conceive.
- Failure to warn about specific disabilities – this is where parents have not been informed their child will be born with a disability and may be able to bring a claim for wrongful birth. The failure to inform parents of that their child will be born with a disability takes away parents’ freedom of choice, to either continue with the pregnancy or to terminate.
What are some of the specific disabilities?
There are hereditary/genetic and structural disabilities, some of which have been listed below.
Genetic disabilities/diseases that can be passed on from their parents to their child and structural disabilities are related to problems related to body parts, such as deformities.
- Down syndrome – an inherited condition, which causes mental and physical developmental disabilities and delays.
- Cystic fibrosis – an inherited condition, which causes severe damage to the lungs and digestive system, where they become clogged.
- Club feet – abnormalities of the feet, where the child’s foot is twisted, or is out of shape or position.
- Hole in the heart – heart defects – this is also called an atrial septal defect, which can occur during pregnancy. This can over time cause damage to the blood vessels in the lungs.
- Spinal bifida – this is where the spine and spinal cord do not form properly.
- Brain malformations – this is where, during pregnancy, the brain has not formed properly.
Some of the conditions listed above, can lead to a child always having to live dependently on their parents, possibly for the rest of their life.
What would I need to prove in order to bring a wrongful birth claim?
Firstly, it is important to establish there has been negligent treatment by a medical professional and that this treatment was below a reasonable standard. Secondly, it is vital to prove, due to that substandard treatment a child was born, under those circumstances.
Had the negligence not taken place by the treating clinician, the child would not have been born. For example, the treating clinician, may have failed to warn the parents about a specific disability the child may have, who could have opted for a termination of the pregnancy, but due to the failure of the treating clinician not conveying this information to the parents, the child was born. The parents would have lost their ability to make an informed decision, to proceed with the pregnancy.
What can I claim for?
Parents who have been let down by the treating clinician can claim for compensation to assist with:
- The care of the child’s needs – this could be anything from hospital expenses, for treatment, to buying special equipment and alternative accommodation.
- Replacing lost income, if parents have had to leave work and become full time carers for their child.
- Educational expenses for the child.
- Emotional pain, suffering and distress of an unwanted pregnancy.
How we can help
We understand how challenging this can be for parents. We understand no parent wants their child to have a difficult life and any child’s life should be free from pain and suffering. We are here to make sure you are supported throughout your claim.
It is important to note, if a child is born after a failed vasectomy, without any genetic or structural difficulties, you cannot claim for a wrongful birth compensation claim. You cannot claim the costs for raising a healthy child.
What is a wrongful conception case?
This is almost the same as a wrongful birth claim but under different circumstances. As explained above, this is where a baby is born as a result of a failed sterilisation or vasectomy.
Men and women undergo such procedures, so they are unable to father or mother children in the future. They may undergo such procedures, for all sorts of reasons, such as a disabled couple may not want to have a child due to their disabilities and may not be able to care for their child as other parents. If the procedure fails and they do have a child and the child is born with a disability or deformity they can successfully bring a wrongful birth/conception case against the clinician or surgeon who failed to perform the sterilisation or vasectomy.
Albeit as explained above, if they give birth to a healthy child, they cannot claim for the costs of raising that child. The cost of bringing up a healthy child are irrecoverable, even if the treating clinician was negligent.
Do fathers have any rights?
Yes, they do. The duty of care of bringing up a child falls on both parents and are both entitled to maintenance costs when bringing a claim under wrongful birth or conception claims.
The law is complex but does assist fathers in bringing a claim for wrongful birth or conception.
For example, if a child was born with a disability or deformity, due to wrongful birth or conception and the mothers dies, the father may be able to apply for compensation of bringing up that child. This claim can be for maintenance costs of raising that child on his own, as he would have the sole duty of care, of raising that child. Compensation claims do not become void due to the death of the mother.
Again, it is important to remember, that even under this scenario, a claim cannot be brought for raising a healthy child.
Can I claim for wrongful birth compensation, where a child has been born with two or more disabilities?
In short yes, and there have been such cases that have been decided in favour of the parents.
In this scenario, a mother may have had herself tested for a genetic disorder she has, because she would not want to conceive or give birth to a child, if that child was going to be born with that disorder. However, if the child was born due to the treating clinicians’ negligence and the child was born with more than one disorder, other than the one tested for, parents may claim for both disorders.
How long do I have to bring a claim?
You have 3 years from the day your child was born to make a wrongful birth compensation claim, or from when the parents ought to have reasonably to have been aware of any negligence by the treating clinician. In a nutshell, the sooner the better, so please get in touch with a team member at IBB Law to start a claim.
Do I need to pay for my wrongful birth compensation claim?
We offer a free initial consultation on starting your compensation claim. We listen to you and suggest how we can help.
In most claims, we are most likely able to offer a, “no win, no fee” agreement. This would allow us to progress your claim, without you having to worry about paying, to start your claim. Rest assured, if you are unable to succeed in your wrongful birth compensation claim, there will no cost to you.
The negligent party will be liable to pay for the costs of bringing the claim.
Will I have to go to Court?
It is unlikely you will have to go to Court. The majority of claims, over 90%, settle, without having to go to Court.
We understand how daunting and emotional it can be for parents to go to court, to go and give evidence, for something that’s already been a very upsetting and challenging situation. It is our aim, to settle your claim as soon as possible, without having to go to court, with the best possible outcome.
What do others say about us?
Our team at IBB Law is recognised by Chambers and Partners and the Legal 500, the two leading client guidelines to the legal profession, for our exceptional skill in handling clinical negligence claims.
Legal 500 judges IBB as having a “good” clinical negligence department and “puts the client’s interests at the forefront of every decision.” Simon Pimlott has “a real eye for detail and works incredibly hard to get the best result for each client.” Simon is identified as a “Rising Star”.
Legal 500 (PI) – “Simon Pimlott is a very passionate lawyer and is dedicated to his clients. He has a particular aptitude for working with challenging and vulnerable clients, especially with mental health problems. He is not afraid to take on difficult cases.”
Legal 500 (Clin Neg) - Simon Pimlott is an outstanding claimant solicitor. He is thorough, intelligent, and empathetic.
We are accredited by the Law Society for Personal Injury Law reflecting our expertise in this area. IBB Claims’ partner Malcolm Underhill has particular expertise with all types of brain injuries, also being accredited as a Brain Injury Specialist by the Association of Personal Injury Lawyers (APIL).
Chambers describes Malcolm as being a highly experienced personal injury practitioner with a strong focus on cases that involve brain injury. A client notes: "He is a very personable, sympathetic professional that has helped us as a family…" It is also said that Malcolm “was very good at keeping in touch and explaining everything to me”.
A market source praises Malcolm’s "clear and empathetic understanding of the individual client and family situation." One impressed client adds: "Malcolm Underhill has been superb from the outset. He has in-depth knowledge gained from extensive experience, which is certainly advantageous."
Contact our wrongful birth claim solicitors
Get in touch with our wrongful birth injury claims solicitors to talk about how we might be able to help. Please phone us on 0333 123 9099, or email us at firstname.lastname@example.org, or fill in our contact form.
We are able to support you, in making a claim to achieve the best possible outcome and will endeavour to support you throughout your claim.