TORT 167 Wrongful Conception Wrongful Birth and Wrongful Life — Law of Torts Notes for Judiciary

Wrongful Conception, Wrongful Birth and Wrongful Life: The Three Claims Arising From an Unwanted Birth

Three distinct claims are grouped under this head and they are constantly confused, because all three follow a birth that would not have happened but for a doctor's negligence. Wrongful conception is the parents' claim that negligence caused a pregnancy at all, typically through a failed sterilisation. Wrongful birth is the parents' claim that negligence deprived them of the information on which they would have terminated a pregnancy, the child being born disabled. Wrongful life is the child's own claim that but for the negligence he would never have been born, and it has been rejected everywhere it has been brought. The Indian position on the first is settled by State of Punjab v. Shiv Ram, and it is more restrictive than most people expect.

1. The Three Claims

	Wrongful conception	Wrongful birth	Wrongful life
Who claims	The parents	The parents	The child
The negligence	A failed sterilisation, or negligent advice about its effect	A failure to detect or to disclose a foetal abnormality, or negligent genetic counselling	The same as in wrongful birth
The complaint	I would not have conceived	I would have terminated the pregnancy	I should not have been born
The child	Ordinarily healthy	Ordinarily disabled	Disabled
What is claimed	The pain of pregnancy and delivery, lost earnings, and the cost of raising the child	The extra cost attributable to the disability, and the parents' distress	Damages for the whole of the child's existence
Standing	Clear	Clear	The central difficulty
Accepted	Yes, on proof of negligence	Yes, on proof of negligence	No

2. Wrongful Conception: the Indian Position

📖 State of Haryana v. Santra, (2000) 5 SCC 182

Facts The respondent, a poor woman with several children, underwent a sterilisation operation at a government hospital and was given a certificate that the operation was successful. She afterwards conceived and gave birth to a daughter. The evidence established that the surgeon had operated on only one fallopian tube and had left the other untouched.

Held The State was liable, and compensation was awarded for the maintenance of the child.

Ratio Where a sterilisation operation is performed negligently, and the woman conceives and delivers as a result, the surgeon and his employer are liable. The failure here was not the natural failure of a properly performed procedure but an operation on one tube only, which no competent surgeon would have left in that condition while certifying the operation successful.

📖 State of Punjab v. Shiv Ram, (2005) 7 SCC 1, decided 25 August 2005

Facts A woman underwent a sterilisation operation and afterwards conceived and bore a child. The operation was found to have been properly performed, the failure being of the kind that occurs in a known proportion of cases whatever the surgeon does.

Held The claim failed. The State was not liable.

Ratio Merely because a woman having undergone a sterilisation operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable. Liability arises only where negligence is proved, applying the Bolam standard. A sterilisation has a known failure rate which no skill can eliminate, and a failure is not by itself evidence of want of care. Further, once the couple has gathered knowledge of the conception in spite of the operation, the Medical Termination of Pregnancy Act, 1971 is available to them, and if they opt for bearing the child it ceases to be an unwanted child, so the cost of its upbringing is not recoverable. Santra was distinguished as turning on a specific finding of negligence, only one tube having been operated upon, and was held not to lay down any law of universal application.

The two decisions together produce a narrow rule. A failed sterilisation is not actionable as such. The claimant must prove that the operation was performed negligently, which means proving that no competent surgeon would have done what was done.
And even where negligence is established, the head of damages is confined. Shiv Ram treats the option of termination, and the decision to keep the child, as breaking the link between the negligence and the cost of raising it.
That leaves the recoverable heads as the pain and suffering of the pregnancy and delivery, the medical expenses, and the loss of earnings during that period, rather than the far larger sum represented by a childhood.

3. The Termination Alternative

Section 3, Medical Termination of Pregnancy Act, 1971, as amended in 2021

A pregnancy may be terminated by a registered medical practitioner where the length of the pregnancy does not exceed twenty weeks, on the opinion of one such practitioner formed in good faith that the continuance would involve a risk to the life of the pregnant woman or grave injury to her physical or mental health, or that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormality as to be seriously handicapped.

Where the length of the pregnancy exceeds twenty weeks but does not exceed twenty four weeks, the same opinion must be formed by not less than two registered medical practitioners, and the provision applies to such category of woman as may be prescribed by rules.

Section 3(2B): the limits on the length of the pregnancy shall not apply to a termination of pregnancy by a medical practitioner where such termination is necessitated by the diagnosis of any substantial foetal abnormalities diagnosed by a Medical Board.

The reasoning in Shiv Ram depends on this availability. The Court's point is that a woman who learns of the conception has a lawful choice, and that the continuation of the pregnancy after that point is her decision rather than the surgeon's consequence.
The 2021 amendment widened the window from twenty to twenty four weeks for prescribed categories, and removed the upper limit altogether where a Medical Board diagnoses a substantial foetal abnormality.
That widening strengthens the Shiv Ram reasoning in the wrongful conception cases and weakens it nowhere, but it also expands the scope for a wrongful birth claim, because the later the lawful window extends, the larger the range of cases in which a negligent failure to detect an abnormality has deprived the parents of a real choice.

4. Wrongful Birth

The complaint is about information and not about conception. The pregnancy was intended; what the negligence took away was the opportunity to end it.
The negligence takes recognised forms: a failure to carry out an indicated ultrasound or screening test; a failure to read or report it correctly; a failure to advise of a known genetic risk; and a failure to tell the parents of an abnormality that was in fact detected.
Causation is the contested issue. The claimant must establish that she would have terminated had she been told, which is a counterfactual about her own decision and is tested against her circumstances, her stated attitudes and the lawfulness of termination at that stage.
The lawfulness of the termination at the relevant time is therefore essential, and section 3(2B) of the amended Act, removing the upper limit where a Medical Board diagnoses a substantial foetal abnormality, is what makes the claim viable in late detection cases.
The measure is the additional cost attributable to the disability, and not the whole cost of raising a child, since the parents wanted a child and would have borne that cost in any event.
Parkinson v. St. James and Seacroft University Hospital NHS Trust, [2002] QB 266 adopts exactly that measure in England, allowing the extra costs of a disabled child while refusing the ordinary costs of upbringing.

5. Wrongful Life

The claim is brought by the child, and asserts that but for the negligence he would never have been born at all.
It has been rejected everywhere. McKay v. Essex Area Health Authority, [1982] QB 1166 is the leading refusal, in a case where a child born disabled after the mother contracted rubella claimed that she should have been advised to terminate.
Three objections are made, and each is independently fatal. The first is that the court would have to hold that non existence is preferable to existence, and compare the child's life with a state of affairs about which nothing can be said.
The second is that damages cannot be computed, the measure being the difference between the plaintiff's condition and one in which he would not exist, which is not a quantity.
The third is that the duty asserted is repugnant, since it amounts to a duty owed to the foetus to procure its own termination, and the law will not recognise an obligation in that form.
The child is not left without a remedy in the true medical injury case. Where the negligence caused the disability rather than merely failing to detect it, the claim is an ordinary one in negligence and succeeds on ordinary principles.

6. The English Comparison

The case	What it decided
McFarlane v. Tayside Health Board, [2000] 2 AC 59	After a negligently performed vasectomy a healthy child was born. The mother recovered for the pain, suffering and inconvenience of the pregnancy and birth, but the costs of bringing up a healthy child were not recoverable, the benefits of parenthood being incalculable and the claim not fair, just and reasonable
Parkinson v. St. James, [2002] QB 266	Where the child is born disabled, the extra costs attributable to the disability are recoverable, though the ordinary costs of upbringing are not
Rees v. Darlington Memorial Hospital NHS Trust, [2004] 1 AC 309	McFarlane affirmed, with a conventional award added to mark the wrong to the parents' autonomy, their right to limit the size of their family having been taken from them
McKay v. Essex Area Health Authority, [1982] QB 1166	A wrongful life claim by the child was rejected

The English and Indian lines converge on the outcome and differ in the reasoning. England refuses the cost of raising a healthy child because the benefits of parenthood make the claim incalculable and unattractive; India, in Shiv Ram, refuses it because the parents had a lawful choice and made it.
The Indian route is the more demanding of the two on liability, since it also requires negligence to be proved against a background of a known and irreducible failure rate.

7. What to Plead

Plead the negligence specifically. After Shiv Ram the failure of the operation proves nothing, and the plaint must allege what was done or omitted that no competent surgeon would have done or omitted.
Plead the want of informed consent as a separate head, since a woman who was not told of the known failure rate, or who was certified as sterile when she was not, has a claim in consent independent of the operative technique: Samira Kohli, TORT 129.
Plead the heads of damage that survive Shiv Ram: the pain and suffering of the pregnancy and delivery, the medical expenses, and the loss of earnings for that period.
In a wrongful birth claim, plead causation carefully: what test should have been done, what it would have shown, when it would have shown it, that termination would have been lawful at that stage under section 3 as amended, and that the mother would have chosen it.
Confine the measure to the additional cost of the disability, following Parkinson.
Do not plead wrongful life. Where the negligence caused rather than failed to detect the disability, plead an ordinary claim in negligence on the child's behalf.
Consider the consumer forum, which is faster and where medical services fall squarely within the Act: TORT 131 and TORT 163.

⚠ Why courts find these claims so uncomfortable, and what that costs claimants

The discomfort is not really about the law of negligence, which handles these facts without difficulty: there is a duty, a breach, a causal link and an identifiable loss. It is about what the court has to say in order to award the damages. To give the parents the cost of raising a healthy child, a judge must hold that the child is, in the eye of the law, a net detriment, and must do so in a judgment the child may one day read. To entertain a wrongful life claim he must hold that this particular existence is worse than none. Judges have refused both, in England by saying that the benefits of parenthood are incalculable and in India by saying that a couple who chose to continue the pregnancy chose the child, and the reasoning in each case is doing the same work: it is finding a route to a conclusion the court has already decided it must reach. The consequence for claimants is real and is worth being candid about with a client. A woman who underwent sterilisation precisely because she could not afford another child, and whose surgeon was careless, will recover for the pregnancy and the delivery and not for the twenty years that follow, which is the whole of what she was trying to avoid. The honest advice is that the claim is worth bringing where the negligence is clear, that it will be measured in tens of thousands rather than lakhs, and that the want of informed consent is frequently the stronger of the two allegations because it does not depend on proving that the operation itself was botched.

8. The Position Stated Shortly

1. Wrongful conception is the parents' claim that negligence caused a pregnancy; wrongful birth that it deprived them of the chance to terminate; wrongful life is the child's claim that he should not have been born.

2. State of Haryana v. Santra awarded compensation where the surgeon operated on only one fallopian tube while certifying the sterilisation successful.

3. State of Punjab v. Shiv Ram holds that a failed sterilisation does not by itself make the surgeon or his employer liable, and that negligence must be proved.

4. Shiv Ram further holds that once the couple knows of the conception the Medical Termination of Pregnancy Act, 1971 is available, and if they opt to bear the child it ceases to be unwanted.

5. Santra was distinguished as turning on a specific finding of negligence and not laying down any law of universal application.

6. The 2021 amendment permits termination up to twenty weeks on one practitioner's opinion and up to twenty four for prescribed categories on two, with no upper limit where a Medical Board diagnoses a substantial foetal abnormality.

7. In wrongful birth the contested issue is causation: the claimant must show she would have terminated, and that termination would have been lawful at that stage.

8. The measure in wrongful birth is the additional cost attributable to the disability, following Parkinson v. St. James.

9. Wrongful life has been rejected everywhere, McKay v. Essex holding that the court cannot compare existence with non existence and cannot recognise a duty to procure a termination.

10. McFarlane refused the cost of raising a healthy child and Rees added a conventional award for the loss of the parents' autonomy.