RECONSIDERING “WRONGFUL LIFE” IN ENGLAND AFTER THIRTY YEARS: LEGISLATIVE MISTAKES AND UNJUSTIFIABLE ANOMALIES

Abstract

AbstractUnder English law a child born disabled, for instance by Tay Sachs disease, as a result of negligent embryo selection by preimplantation genetic diagnosis (‘PGD’), can sue the relevant health professionals by means of a 1990 amendment to the Congenital Disabilities (Civil Liability) (‘CD’) Act 1976. By contrast, a second child conceived outside the in vitro fertilisation (‘IVF’) clinic, whose Tay Sachs is not detected in utero by means of prenatal diagnosis, can have no claim against the relevant health professionals due to the decision in McKay and Another v Essex Area Health Authority, which held that a child can have no claim for so-called “wrongful life”. This paper argues that this difference is anomalous and inequitable. It highlights the inadvertent way in which the legislative exception was crafted and shows that there are no relevant differences between the selection practices of PGD and PND that would in any event justify such different treatment. It critiques the English common law position on wrongful life by analysing the ethical and legal foundations of such a claim, arguing that the action should be permitted on the basis of a certain degree of severity, namely where a future child is likely to think that his or her life is not worth living. The analysis makes particular reference to developments since McKay in the law relating to the selective non-treatment of neonates, selective abortion, wrongful birth, and the action for wrongful life itself, as well as to the legal position of pregnant women in relation to the fetus, and the critique by people with disabilities of the practices of PGD and PND. The paper argues that McKay and those parts of the CD Act that purport to deny a claim for wrongful life to children born outside the IVF context should be revisited when the opportunity arises. The duty that health professionals already owe prospective parents to advise of a condition in a developing fetus that would give rise to serious impairments in the future child (which sounds in an action for so-called “wrongful birth”) should be owed at the same time to the future child, realised by advice to the pregnant woman, where a child is likely to be born with a condition that is so severe that any goods in life are outweighed by the burdens.