Justice Lax also distinguished children born with disabilities and healthy children. She stressed that even though “every life has value,” the financial and emotional burdens imposed on the parents of a disabled child are far more apparent than the burdens imposed on the parents of a healthy child.22 The only exception, according to Justice Lax, was if the parents sought sterilization for economic reasons and then subsequently suffered a “genuine injury.”23 The Court was of the view that damages for raising a child should be treated as “pure economic loss” where recovery is only available to parents who pursued sterilization for economic reasons.24 Therefore, Justice Lax denied the cost of raising the healthy child in Kealey because the plaintiffs had a combined household income of $100,000, were not seeking sterilization for economic reasons and grew fond of the child.25
Although the action for failed sterilization was dismissed in MY v Boutros,26 damages were provisionally assessed as limited to the costs associated with the prenatal period and loss of income during pregnancy, similar to that of Kealey. Justice Rawlins denied the cost of raising the healthy child because the plaintiffs were ultimately happy to accept the child into the family, which was aligned with the view that “benefits a child brings to a family outweigh the costs of that child to a family.”27 Justice Rawlins also looked to the bereavement damages available to parents under Alberta’s Fatal Accidents Act28 as legislative evidence that children are of value to parents.29
In MY, Justice Rawlins rejected Justice Lax’s reasoning in Kealey, finding no merit in analyzing the reason for seeking sterilization to determine damages.30 Justice Rawlins held the view that all plaintiffs should be denied the cost of raising a healthy child, regardless of the motivation for sterilization. It would be impossible for any defendant doctor to know the reason for sterilization in each case and foresee the claim.31 Similarly, it would be challenging for the courts to recognize the true motivation of the plaintiff in seeking sterilization, if there is even one identifiable reason.
In TG v Boutros, the Court found that the plaintiffs were not entitled to recover the costs of raising the healthy child born from failed sterilization because it is “inappropriate to characterize the cost of raising a healthy child, born to a family who loves her, as an injury or loss.”32
Loss of Autonomy Approach
A variation of the Limited Recovery Approach, the Loss of Autonomy Approach recognizes the loss of autonomy or right to choose as the true nature of the harm suffered by the plaintiff. In Canada, this approach is taken to award higher general damages. In Bevilacqua v Altenkirk, the plaintiff parents were awarded damages after a failed vasectomy resulted in the birth of a healthy child. Justice Groberman awarded non-pecuniary damages to the mother mostly for pregnancy and childbirth, and then to the father, primarily to compensate him for the readjustments he had to make in response to the financial burdens of providing for the child.33 Justice Groberman stated that the “law ought to assume that there is some harm to the parents” resulting from the birth of an unplanned child.34
Justice Groberman emphasized that general damages should address the actual burdens faced by the parents in raising an unplanned child.35 Plaintiffs were not to be precluded from claiming the costs of raising the healthy child only because such damages might arguably be classified as pure economic loss.36 Additionally, Justice Groberman held that the current theories of damage quantification do not adequately compensate the plaintiff, and that the conventional sum is inappropriate because it does not assess damages on a case-by-case basis.37 Yet, a full recovery approach was rejected because he found that it overcompensated the plaintiffs by ignoring the benefits of the child.38
