Wrongful Birth & Failed Vasectomy Compensation Claims.

In most cases an expectant mother will have their first midwife appointment before 10 weeks gestation, and during this appointment the midwife will ask a series of questions to assess the medical history of the family. From here, the midwife can determine whether the mother needs to be referred for further tests to check for genetic conditions, including cystic fibrosis, Huntington’s disease, Turner syndrome, and arthritis.

All pregnant women are offered various screening tests to see if their baby has a higher chance of having a health condition. The screening tests used are a combination of ultrasound scans and blood tests. Different screening tests are offered at different times during pregnancy. The screening test for sickle cell and thalassaemia should be offered as early as possible before 10 weeks of pregnancy.

It’s recommended that screening blood tests for HIV, hepatitis B and syphilis also happen as soon as possible in pregnancy. This is so if you do test positive you can be offered specialist treatment to reduce the chance of your baby getting infection.

You should be offered screening for Down’s syndrome, Edwards’ syndrome and Patau’s syndrome around the time of your 12 week dating scan. If this screening suggests your baby has a higher chance of having one of these conditions then you will be offered a diagnostic test known as amniocentesis, to give you a more definitive answer. This is a procedure whereby a small amount of amniotic fluid is collected for testing.

It is not compulsory to submit to screening, but it is standard practice for it to be offered to all pregnant women, along with advice about why and how the tests are carried out, enabling them to make an informed decision.

At around 20 weeks gestation, the mother will be offered an anomaly scan which checks the baby’s physical development, in particular their heart, brain, kidneys, spinal cord, face, abdomen, and bones. The scan also looks for the presence of 11 different rare conditions, including spina bifida, cleft lip, bilateral renal agenesis, anencephaly, diaphragmatic hernia, exomphalos, gastroschisis, lethal skeletal dysplasia, serious cardiac abnormalities, Edward’s syndrome, and Patau’s syndrome.

In some cases, accurate identification of a genetic condition may result in the parents making the difficult decision to terminate the pregnancy, particularly if the fetus’ condition is incompatible with life.

Some of the reasons failed genetic testing may lead to a wrongful birth compensation claim include:

• Screening for genetic conditions was not offered or carried out.
• The screening failed to detect the presence of a genetic condition.
• An anomaly scan at 20 weeks gestation was not offered or carried out
• The sonographer failed to identify a genetic condition during the anomaly scan.
• The condition was identified but was not communicated to the parents.

If a baby is born with a genetic condition which the parents were not made aware of beforehand, and they would have chosen to terminate the pregnancy had they known of the presence of the condition, the parents may have a valid basis on which to make a claim for wrongful birth compensation.

If you have received negligent medical care which has led to a wrongful birth and you are unsure whether or not you are eligible to pursue legal action, please get in touch and we will gladly discuss your situation and offer advice and guidance.

In 2000 a legal precedent was set with regards to this issue. In the case of McFarlane v Tayside Health Board, the defendant made a wrongful birth claim following the birth of a healthy child that was conceived following a failed vasectomy. During the process, the general costs of bringing up a healthy child were considered, however it was eventually decided by the House of Lords that such costs could not be compensated for.

Since this case, any wrongful birth claim brought about due to a failed vasectomy or sterilisation, in which a child is born after an unwanted pregnancy, cannot include the normal costs of raising a healthy child to adulthood. You can however claim for the costs associated with raising a child who has lifelong additional health needs or disabilities.

If you would like any further information or clarification on what you are eligible to claim for as part of a wrongful birth compensation claim, please get in touch and our specialist medical negligence team will be more than happy to assist you.

Making a wrongful birth compensation claim can be an incredibly difficult decision for parents to make. Admitting that you would have terminated the pregnancy had you had all of the available information about your child’s health condition before they were born does not mean that your child is not wanted or loved now that they are a living member of your family.

For legal purposes, it means that your pregnancy was unplanned and/or unavoidable and that your family has faced some hardships due to the missed or misdiagnosed genetic condition or birth defect.

In order for a wrongful birth compensation claim to be successful it must meet the following criteria:

• The medical professionals responsible for your antenatal care were negligent.
• You can provide reasonable proof that you would have terminated the pregnancy if it were not for the medical negligence.

If you would have chosen to carry on with the pregnancy either way then you are not likely to be eligible to make a compensation claim. However, if your circumstances meet the above criteria, please get in touch to discuss your claim with one of our empathetic and understanding medical negligence solicitors.