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Legal 500

Wrongful Birth Compensation Claims

Every parent deserves the opportunity to make an informed decision about whether to have a child. When that choice is taken away due to the negligence of your doctor, midwife or other healthcare professional, you may be able to claim compensation for wrongful birth.

At Minton Morrill, our friendly and dedicated team of medical negligence solicitors can help you make a wrongful birth compensation claim. As one of the leading medical negligence teams in the country, we are highly skilled at helping families seek answers and access the compensation they need to help them move forward with their lives. We will take all possible steps to reach a positive settlement that benefits you and your child.

What is a wrongful birth?

In the UK, wrongful birth is a legal term used to describe circumstances arising from the birth of a child who would not have been born had it not been for the negligent treatment of healthcare professionals.

This type of legal claim can be pursued by the parents, usually the mother, if they have suffered from substandard or negligent treatment. A child cannot bring a claim for losses arising as a consequence of their birth.

Your GP, midwife, obstetrician and any other healthcare professional has a duty to keep you informed and to carry out their duties with due care and attention. If their standard of care falls below what is expected of them and you suffer harm as a result, you may be able to claim compensation.

There are two main scenarios that can lead to wrongful birth:

  1. Due to negligence, a child is born with congenital conditions or disabilities that could have been detected before birth and the parents would have terminated the pregnancy if they had known.
  2. Due to negligence, a sterilisation or vasectomy failed leading to an unintended pregnancy and birth.

Can you claim compensation for a wrongful birth?

Yes, although the requirements for your wrongful birth compensation claim will depend on the exact circumstances of your case.

Wrongful birth claims for congenital conditions and disabilities

You may have a claim for wrongful birth compensation if all of the following apply:

  1. Your child was born with a genetic condition or disability;
  2. The condition or disability could and should have been detected during pregnancy; and
  3. You would have terminated the pregnancy if you had been properly informed.

There are many conditions, both physical and cognitive, that can be detected during pregnancy, such as:

  • Down’s syndrome
  • Spina bifida
  • Heart defects
  • Limb defects
  • Cystic fibrosis

Your healthcare professionals are responsible for checking for certain conditions during pregnancy and recognising where there may be risks. For example, if you are a carrier of the haemophilia gene, it is usually advisable to test the foetus for haemophilia. If a GP fails to recognise this risk or does not inform you or recommend foetal testing, this could be considered negligent if the baby is born with haemophilia.

Your right to make an informed decision over whether to have the baby is key to proving wrongful birth. You need to be able to prove that if you had been properly informed, you would not have continued with the pregnancy.

We recognise that for many parents, this is a highly emotive matter and it is important to remember that wrongful birth claims, despite the name, are not about proving that the child is unwanted but about recognising that their needs are more complex than expected and that all possible steps are taken to ensure they get the support they need.

Wrongful birth claims for failed sterilisations and vasectomies

There are many reasons you may choose to have a sterilisation or vasectomy. Whatever the reason, you have the right to choose whether or not to have children. When that right is taken away because of a negligent sterilisation or vasectomy, you may be able to claim wrongful birth compensation.

Sterilisation and vasectomy procedures, when carried out correctly, are highly effective at preventing pregnancy. However, medical negligence can sometimes lead to the procedures failing, such as in the following circumstances:

  • Surgical negligence – If the surgeon carrying out the procedure makes a mistake;
  • Failing to properly inform you of the risks – For example, there is a risk that having unprotected sex in the first 12 weeks after a vasectomy could still lead to pregnancy.

Depending on the circumstances of your case, compensation can be sought for the emotional distress of the trauma of going through pregnancy or birth or having to undergo a further sterilisation procedure. You cannot claim compensation for the costs for raising a healthy baby.

How can you prove a wrongful birth was the result of medical negligence?

To successfully make a medical negligence claim, you must be able to prove that:

  • The standard of care from your doctor fell below what was expected of them;
  • This substandard care resulted in an unintended pregnancy or birth of a child; and
  • If you had not received substandard care you would not have had the child or become pregnant.

As part of our legal investigation, we will carefully look at the circumstances which led to the wrongful birth and with the help of leading independent medical experts consider whether there were any failings in your care.  If your child has been born with a genetic condition or disability we will also carefully assess the needs of your child.

What can wrongful birth compensation be used for?

We can help you claim compensation for a wide range of things, including:

  • Pain and suffering (both physical and emotional)
  • Loss of earnings or loss of earning capacity (e.g. if you have to take time off work as a consequence of your pregnancy)
  • The loss of the ability to limit the size of your family
  • The costs of caring for a child with a genetic condition or disability, such as therapies, specialist equipment, home adjustments, or moving to an adapted property
  • The costs of travelling to and from medical appointments
  • The costs of further procedures, such as re-sterilisation or vasectomy

For claims relating to failed sterilisation or vasectomy, you cannot claim the costs of raising a healthy child. Compensation claims are usually limited only to the emotional and physical harm of going through pregnancy and birth. However, if the child is born with a disability, you may also be able to claim compensation for the additional costs associated with raising a disabled child.

Do you need to go to court to claim compensation after a wrongful birth?

With the support of an experienced medical negligence solicitor, there is only a small chance you will need to go to court. The vast majority of claims settle out of court.  We have an in-depth knowledge of the complex law in this area and we can guide you through the claims process.

How much compensation can you claim for a wrongful birth?

The amount of compensation you can claim will ultimately depend on your individual circumstances. As part of our legal investigation, we will assess both you and your family’s needs and establish how much you could be entitled to (often known as “quantum”).

For cases involving the wrongful birth of a child with a genetic condition or disability, the compensation may need to provide for significant care and input from professionals, such as an occupational therapist and carers.  In these cases, compensation could be in the hundreds of thousands or even millions of pounds to ensure a financially secure future for the child and their family.

For cases involving failed sterilisations and vasectomies, compensation is usually limited to the physical and emotional pain and suffering of going through a pregnancy and birth or termination and losses associated with this.

Is there a time limit for claiming wrongful birth compensation?

The standard time limit for bringing a wrongful birth compensation claim is 3 years from either:

  • The date of birth; or
  • The date you became aware of the negligence (or reasonably ought to become aware)

How long does it take to get wrongful birth compensation?

As cases of wrongful birth involve children, often with complex health needs, compensation claims can often take some time to resolve.

However, if the negligent healthcare provider is prepared to admit liability early on, this could make the process shorter as you may not need to undertake a full investigation into the standard of treatment provided. If your child suffers from a genetic condition or disability you may also be able to claim interim payments to pay for things like care, therapy and home adaptions while the final compensation settlement is being worked out.

Funding your wrongful birth compensation claim

We understand that the prospect of bringing a legal claim can be daunting and it is common to be concerned about the costs of pursuing compensation. We will discuss a range of flexible and accessible funding options with you, allowing you the opportunity to make a claim regardless of your financial circumstances. This could include a No win, No fee agreement (or Conditional Fee Agreement), legal expenses insurance, trade union membership, or private funding arrangements.

How do no win no fee wrongful birth claims work?

If there are good prospects of a case being successful, we can offer clients a No Win No Fee Agreement.  Under this type of Agreement, if the case is ultimately unsuccessful, you walk away, without paying our legal fees.  If the case succeeds, we seek to recover your legal costs from the Defendant and will likely charge you a success fee which is strictly capped so that you retain most of the compensation (including all compensation for your future losses)

Contact us for advice about making a wrongful birth compensation claim

For further information from a specialist medical negligence solicitor about starting a wrongful birth claim, give us a call on 0113 245 8549 or Ask Us a Question by filling in our online enquiry form.

How our solicitors can help with wrongful birth claims

We are here to provide as much support as you need during this difficult time. We understand that adapting to life with a child with complex needs can be challenging.

We can guide you through the legal process and help you claim compensation for things like ongoing medical treatment, care, specialist equipment as well as reparation for the physical and emotional pain and suffering caused to you and your family.

We are a top ranked medical negligence team by leading client guides, Chambers and Partners and the Legal 500.

Our senior lawyers are all panel members of the gold standard Action Against Medical Accidents accreditation scheme, which is essential for solicitors who handle complex medical negligence claims.

Among our highly experienced team, Simon Minton, Julia Morrill, and Sahida Patel are all accredited specialists of the Clinical Negligence Panel for their independently recognised skills in this area.

We are an accredited practice of the Association of Personal Injury Lawyers (APIL), with several of our talented team holding memberships, including Sahida Patel who holds ‘senior litigator’ status.