Joy to the World! A (Healthy) Child Is Born! Reconceptualizing Harm in Wrongful Conception

Abstract

The wrongful conception action holds both a troubled past and future. As a response to rapid technological advancement in the area of reproduction, this action has introduced complex legal and ethical issues in the courts efforts to respond to the question: Can parenthood ever constitute an injury? At the heart of this dilemma lies the manner by which both law and society conceptualize harm is this part of the normal vicissitudes of life or a harmful event? But this question is not decided within a legal vacuum and public policy factors have deeply influenced the nature and existence of case law in this field. In the context of the controversial cases of McFarlane v Tayside Health Board [2000] and Rees v Darlington Memorial Hospital [2002], this article critically examines how harm is judicially characterized and explores the various tensions emerging from conflicting harm constructs. In arguing that the courts must seek to find a balanced approach between public policy concerns and reproductive autonomy, this article will present a fresh theoretical perspective to the conceptualization of harm based on autonomy as the central organizing principle.