Wrongful Birth Cases: The Filters of Scope of Duty and of Normative Causation

Wrongful birth cases were initially brought most often for failed contraception, sterilisation or termination of pregnancy. Claims have since arisen from alleged failures in the provision of pre-conception and antenatal advice leading to a loss of opportunity to commence or terminate a pregnancy, or for failures in assisted reproduction. Within that second category, breach of duty leading to the birth of a child with disabilities has not always been enough for the claimant parent/s to recover compensation or at least for all of the child's disabilities. Two key cases show the courts' focus on scope of duty issues - Waller v James and Khan v Meadows. Arguably the same outcomes could have been arrived at by consideration of normative causation. This article examines the two cases, but emphasises the fact-sensitive nature of those judgments in which scope of duty and normative causation filters may or may not apply.