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Rethinking Reproductive Injury

Date:5 FEB 2010

NICOLETTE PRIAULX, Senior Lecturer in Law, Cardiff Law School

Advances in reproductive medicine have increased the scope of choice in family planning; well-established procedures such as sterilisation and abortion to more sophisticated interventions such as in vitro fertilisation seemingly make possible one's wishes to avoid parenthood, or desire for a child in the face of impaired fertility. Yet the availability of such interventions also increases expectations of practitioners working in reproductive medicine. Like any other area of clinical practice the techniques deployed are susceptible to human error. Those charged with responsibility for delivering such services will inevitably be exposed to the threat of litigation when clinical mishap apparently 'deprives' individuals of the ability to realise their specific reproductive wishes.

The subjective nature of reproductive choice coupled with the novelty of techniques sometimes demanded, poses something of a challenge for existing categories of negligence. In particular, one of the chief dilemmas arising has been in assessing whether, and in what way 'injury'/'damage' has been sustained. While bodily injuries like broken bones are unproblematically seen in tort as deleterious and physical, harms occasioned in the reproductive domain tend to evade simple categorisation.

Suits for wrongful pregnancy provide one example of the dilemmas courts confront in this context. Though most of us would not generally regard a 'normal' pregnancy as constituting an injurious event, where those consequences are unwanted and materialise by virtue of clinical negligence, our response would probably differ. Is this actionable 'damage'? That pregnancy can be seen by different actors as natural/desirable and injurious/harmful makes harder work of typifying that state as a 'personal injury' as the House of Lords' ruling in McFarlane v Tayside HB [2000] 2 AC 59 exemplifies. Though accepting that an unwanted pregnancy could constitute a personal injury, given that this was the very event the claimant sought medical assistance to avoid, the discussion as to how pregnancy is actually injurious, and how this accords with conventional understandings of damage, led to a strained and unconvincing set of judicial responses.

To read the rest of this article, see December [2009] Family Law journal.

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