The Problem of Unwanted Births and the Awarding of Damages on a Public Policy Basis - Essay Example

case a blessing.3 The circumstances posed to the Court of Appeal in Emeh required that it find some form of reconciliation between the two different stances of Udale and of Thake, though it was distinct from these two cases because the child had been born with disabilities. As a result, the damages awarded were restricted to those extra costs incurred as a result of the unwanted child’s disabilities, though the court claimed that it had awarded full costs. The approach as contained in Damages for the Birth of a Child4 suggests that Emeh was a result of the equation of unwanted pregnancy with consequential economic loss, and the damages were thus calculated according to “reasonably foreseeable financial loss directly caused by the unexpected pregnancy”.

5 This approach was arguably taken too far in the decision of Benarr & Another v. Kettering Health Authority6in which it was held that damages could extend to private education of the unwanted child. . the courts in relation to the decision of Emeh, and Ognall J in a subsequent similar case expressed his discomfort with a law that awards damages to the mother of a child, particularly if it is healthy; he said: “but there it is: that is the law”.8 Although the approach of the courts appears to be undecided on this matter, it is argued by some that awarding damages for both healthy and disabled unwanted children is perfectly acceptable according to principles of tort law,9 though decisions of the court have disagreed with this contention.

10 There appears to be a major problem surrounding the distinction between unwanted healthy children and unwanted disabled children, and whether full or partial damages are to be awarded to both.11 It is suggested that the failure of the court in McFarlane to restrict its application to disabled children has caused an array of confusing exceptions to be created by subsequent cases on the topic.12 Yet what is the public policy behind the approach of the courts? It was claimed in Rees v Darlington Memorial Hospital NHS Trust13 that there are major public policy implications for making public bodies that are funded by the public to pay large sums of money to parents of healthy children.

14 Such an approach has claimed that awarding damages for healthy unwanted children simply takes the law of tort “too far”.15 While this would seem to be a reasonably grounded policy which aims to establish the importance of causing healthy unwanted pregnancies and unhealthy unwanted pregnancies, highlighting the graver financial (and psychological) inconvenience of the latter, it has attracted much criticism.16 Such criticism is however warranted if one is to view the normal application of tort law which functions to award damages to healthy