Sometimes it feels like women are divided into two groups – women who just can’t get pregnant and women who just can’t help getting pregnant.
In a recent court decision, the Judge Daniel Fisch of the Haifa Magistrate’s court had to grapple with the question of how much, if any, compensation to pay to a couple for what’s known in the law as a “wrongful birth” (an awkward term if I ever did hear one). That is to say, the birth of a child who was not supposed to have been born, since – in the case before the court – the mother underwent a medical procedure which was to have made it impossible for her to conceive a child. This, despite the fact that the child was healthy.
The parents had nine children, and they asked that following the last birth, which was a C-section of twins, the mother have a tubal ligation procedure performed, since it was the express desire of the parents to have no more children. The hospital complied, she had the procedure, and fifteen months later gave birth to their tenth child!
Was the hospital negligent? And if so, are the parents entitled to compensation despite the fact that the child is healthy and without any special medical needs?
There’s a link to the judgment in Hebrew, here.
From the factual determinations of the case, it appears that following the birth of the twins and the tubal ligation, the woman went to her local health fund doctor when she didn’t menstruate; the doctor put her on medication, but failed to do a pregnancy test. When she finally did a pregnancy test, she discovered that she was already fifteen weeks pregnant. The abortion board in her area granted her permission to abort the fetus, but the parents decided against this step since they received a medical opinion that the mother was so far along in her pregnancy that the abortion could endanger her health.
And so, a few months later, she gave birth to a healthy baby boy. And yes, after this birth she ensured that the post-birth procedure would really guarantee that she would no longer conceive.
The court-appointed medical experts examined the medical records and concluded, first, that the initial tubal ligation was not done properly, and second, that when the woman reported that she had ceased menstruating, the doctor should have ordered a pregnancy test immediately,
The plaintiffs sued for damages both for the costs of raising their child, as well as for the infringement on their autonomy, when it was clear that they wanted no more children.
The judge accepted as a matter of fact that the medical establishment was negligent; in the decision, he struggles with the correct way to determine what, if any damages should be paid, and surveyed the three basic approaches to the problem. The first refuses to recognize that the birth of a healthy child should ever result in compensation. The second takes the opposite approach, and sees a “wrongful birth” as a set of factors to plug-in to a standard tort template, without taking into account any of the other legal or ethical factors involved. Then there is a third, kind of middle-of-the-road approach, which attempts to balance the cost of the damage, along with the benefit accrued from the act, in this case, the birth of a healthy child.
Judge Fisch rejects the first two approaches, and goes for the third approach. He rejects the first – which would impose full costs of raising the child on the negligent parties – since, among other shortcomings, it ignores the value of the life of the child, social values and correct judicial policies. He rejects second view, that there should be no compensation, since, someone’s negligence has in fact imposed both costs on the parents and infringed on their autonomy.
In his “third way” decision, he calculates the costs of the actual pregnancy to the parents, and attempts to calculate the value of the infringement on their autonomy. Ultimately, he ruled that the defendants should pay both of these approaches a little over 100,000 shekels plus court costs.
The judge said that he didn’t have sufficient evidence before him to evaluate what the costs were. However, I think that there was a great deal of judicial discretion here particularly with regard to the infringement on autonomy. How much this is worth is anybody’s call, and it is certainly a value judgement. Despite the fact that the court accepted the suit, I think that in our very pro-natal society, the court was not comfortable making the statement that an infringement on autonomy which is a result of the birth of a healthy child, should result in high damages.