The price of life: law,policy and ethics in wrongful existence claims

Abstract

Autonomy and the sanctity of life are key ethical principles in many medicolegal dilemmas, and the tension between them is particularly evident where damages are claimed for negligence leading to the birth of a child. Although often the judiciary have been reluctant to ascribe their decisions in this field explicitly to ethical or policy considerations, this is rather disingenuous. Other jurisdictions, dealing with the same issues, have come to varying conclusions, but almost always expressly based on policy or ethical grounds. Using a detailed review of the development of case law on 'wrongful existence' claims, this paper discusses the underlying issues of judicial policy making and the ethical conflict between the sanctity of life and autonomy, and considers the implications for the future. It examines the increasing prominence of policy considerations in our jurisprudence more generally, often dressed as 'distributive justice', and the apparent trend toward preference for autonomy over more traditional views of the sanctity of life in recent years. A second article will describe the development of case law on 'wrongful existence' in some detail and will look briefly at the solutions in other jurisdictions. The third article will pick out the key elements of the leading authority (McFarlane, 1999), and ask whether any predictions can be made in this specific field or more widely.