Wrongful Birth

Causation

Causation in wrongful birth claims is based on the application of the modified objective test: a consideration of what a reasonable patient in the circumstances would have done if faced with the same situation. In TS v Adey,³ a case involving the failure to report fetal abnormalities on a prenatal ultrasound, the Court found that a reasonable person in the plaintiff’s position would have elected to terminate the pregnancy but for the actions of the defendants. In coming to that conclusion, the Court considered the fact that the plaintiff and her partner were in a relationship of relatively short duration, they lived in separate cities, the pregnancy was unplanned, the plaintiff was in school with ambitions to pursue further qualifications, the plaintiff had significant debt with no financial support from her family, the plaintiff and her partner were of no religious affiliation and the plaintiff was “pro-choice.”⁴

Conversely, in Bosard v Davey,⁵ while the Court did not find the defendants negligent in failing to advise the plaintiffs of the increased risk that their child would be born with disabilities, the Court held that, even if the defendants were negligent, the plaintiffs would not have chosen to terminate the pregnancy as once they decided to get pregnant, they wanted a child desperately. The Court also took into account the fact that the plaintiff continued to smoke and drink during her pregnancy as indicative of a willingness to accept some degree of risk of harm to the child.⁶

Children Born With Disabilities

The guiding principle of tort damages is restitutio in integrum.⁷ That is,the defendant must put the plaintiff in the position they would havebeen in, had the tort not been committed. In the case of wrongful birth of a child with disabilities, courts have generally awarded only the extraordinary, disability-related cost of care for the child, but not the ordinary cost of raising a child, even though the child would not have been born at all, but for the defendant’s negligence.

In Cherry (Guardian ad litem of) v Borsman, the pregnant plaintiff sought an abortion.⁸ The defendant doctor performed the abortion negligently, resulting in the birth of the child with disabilities caused by the failed abortion. The Court held that the mother was entitled to recover damages flowing from the birth such as loss of income and general damages. While awarding the disability-related cost of care to the infant plaintiff, the Court emphasized that for a healthy child, cost of care would normally be the responsibility of the parents.⁹ In RH v Hunter,¹⁰ the defendant doctor was found to be negligent for failing to refer the parents to genetic counselling, resulting in the birth of twins with muscular dystrophy. Again, only the disability-related cost of care for the children were awarded.

In the Supreme Court of Canada case of Krangle (Guardian ad litem of) v Brisco,¹¹ the plaintiffs were the parents of a child born with Down Syndrome after the doctor did not advise the parents of the availability of prenatal testing. Damages were awarded to the parents only for the disability-related cost of care for the child to the age of majority, based on the pre-amendment wording of the now repealed Family Relations Act¹² under which parents were not legally responsible to care for children after the age of majority even if the child was disabled. Therefore, the difference in statutory positions and changes to legislation over the years may impact the claim for cost of care after the age of majority.