Wrongful Pregnancy and the Offset/Benefits Approach

Abstract

Wrongful pregnancy cases involve unwanted pregnancies and births caused by medical negligence. In all such cases, the resulting child is unplanned and the relevant healthcare professional’s services were retained in order to prevent pregnancy and childbirth. I argue that wrongful pregnancy victims are entitled to Total Recovery, damages for both child-rearing costs and losses associated with pregnancy. Critics of Total Recovery often appeal to the Offset/Benefits Approach (OBA). In its most radical form, OBA insists that healthy children always constitute an overall benefit to their parents and that this overall benefit cancels out any claim to damages for child-rearing costs. However, OBA cannot justify blocking or reducing wrongful pregnancy victims’ claims to child-rearing damages. The conviction that children must always be treated as overall beneficial to their parents is based on a confused combination of moralistic judgment and legal fiction. More importantly, the benefits of children, whatever these may be, fall outside the scope of the tortfeasor/victim relationship; these benefits are irrelevant to the assessment of damages. My case against OBA is based on an account of corrective justice that draws on the works of Ernest Weinrib and Arthur Ripstein. I illuminate both the defects of OBA and the justice of Total Recovery by comparing wrongful pregnancy suits with Weinrib’s famous plane crash example.