Wrongful birth – compensation and claims

A vasectomy is a permanent surgical procedure that cuts or seals the tubes carrying a man’s sperm to prevent pregnancy. Failed vasectomies occur for less than 1% of men.

There are three main reasons this can happen:

• Surgical negligence: Errors can occur if your surgeon misses the tubes during the procedure. Previous surgery in the area can increase the risk, but the surgeon/doctor should know if this happens.
• Having sex too soon: Ignoring medical advice and having unprotected sex within the first 12 weeks of having your procedure. Unprotected sex during this time could lead to pregnancy.
• Tubes reconnect: Occasionally the vas deferens (the tubes that are blocked/snipped) can reattach on their own, with small channels forming in scar tissue.

Female sterilisation is when a woman’s fallopian tubes are blocked or sealed to prevent fertilisation. It’s more than 99% effective at preventing pregnancy.

However, there is a risk the operation will not work – as in some cases blocked tubes can re-join either immediately or years later.

Similar to a vasectomy, you can have a wrongful birth claim if sterilisation fails due to medical or surgical negligence.

Sterilisation procedures can involve applying clips or rings over the fallopian tubes or cutting, tying and removing part of it. If the surgeon makes a mistake, the sterilisation may not work.

Genetic tests are sometimes carried out during pregnancy to check if the foetus is affected by an inherited family-specific disease.

It can also be carried out to test if the mother is a ‘carrier’ – i.e. they do not have the condition, but there is a chance they could pass it on to their children.

Accurate identification of a genetic condition in the foetus could result in the parents deciding to terminate the pregnancy. A missed or inaccurate diagnosis can have worse consequences, leading to a wrongful birth.

The two main ways this can happen is through incompetence, if the medical professional doing the scan fails to spot signs of a genetic condition, or if the condition is identified but the parent(s) are not informed.

Types of genetic conditions can include:

• Down syndrome
• Cystic fibrosis
• Huntington’s disease
• Arthritis
• Sickle cell disease
• Heart disease
• Turner syndrome

There are other, non-genetic and structural conditions that pregnancy scans can pick up:

• Cerebral palsy
• Hole in the heart
• Spina bifada
• Brain malformations

McFarlane v Tayside Health Board was a case decided by the House of Lords in November 19992. It ruled that when an unwanted pregnancy (and wrongful birth) happened due to negligence related to a vasectomy operation, the health authority would be liable for damages for the physical effects of the pregnancy and childbirth.

However, the health authority would not be liable for the costs of bringing up the child unless the child had a disability.

This followed a claim from a couple where the father had a vasectomy in October 1989 and was informed by letter in March 1990 that his sperm count was negative. However, the mother became pregnant following the resumption of intercourse and gave birth to their fifth child in May 1992.

They claimed pain and distress for the mother and the financial costs they both incurred from raising the child3. The McFarlane v Tayside Health Board ruling awarded damages for the pain and distress but said it was not fair, just or reasonable to impose liability on the doctor or their employer (the health authority) for the responsibilities imposed on or accepted by the parents to bring up the child.

The amount of compensation you could receive from a wrongful birth will depend on the exact nature of your case.

Payment normally covers the following impacts of unwanted pregnancy and labour:

• Physical pain
• Emotional distress
• Incapacity
• Re-sterilisation procedure costs

This is usually around £5,000 in total. However, it can be higher if the pregnancy or labour was exceptionally complicated or resulted in post-natal depression. You can also claim for any loss of earnings due to the unwanted pregnancy – based on your maternity pay.

You will not receive compensation for the costs of bringing up a child after a failed vasectomy or sterilisation unless the child is born with a disability. This is due to the McFarlane v Tayside Health Board and Rees v Darlington Memorial Hospital rulings.

Depending on the individual circumstances of your sterilisation, you could receive around £15,000 in compensation as you have lost the right to limit the size of your family. At Leigh Day, we can advise on the damages you may be able to recover.