Mother gets €1.8m in first ever ‘wrongful birth’ case

A mother who is a carrier of a rare genetic condition, and who claimed she was deprived of her right to travel for an abortion, has settled the first ever ‘wrongful birth’ case here for an interim payment of €1.8m.

The woman’s child was born with the same disabling condition after a test on the foetus for that condition came back with a normal result.

The case is the first ‘wrongful birth’ case based upon the right to travel to succeed at the High Court.

The mother had planned to exercise her constitutional right to travel to the UK for an abortion if the test had shown her unborn child had the same debilitating genetic condition, the High Court heard. The child was born with the condition and needs 24 hour care.

Because of the incorrect test, the mother claimed she was deprived of the ability to gave an informed consent and to make an informed choice in respect of the continuance of her pregnancy.

Oonagh McCrann SC, for the mother, told the court that after the normal result back on the test, the parents proceeded happily and joyfully with the pregnancy. They suffered enormous shock and grief when the baby was born and found to have the rare genetic condition with very significant and profound disability requiring 24-hour care.

Mr Justice Kevin Cross has ordered no detail can be published which would identify the mother and child.

The mother had sued The Rotunda Hospital, Dublin, and Our Lady’s Children’s Hospital, Dublin.

Full liability in the case was conceded by letter on June 13th last.

The letter stated that “in the particular circumstances of this case and in light of the outcome of the recent referendum repealing the Eighth Amendment to the Constitution” liability was conceded and the public policy defence was withdrawn.

Mr Justice Cross, noting liability had been conceded, said he accepted that but he would have thought the result of the referendum had nothing to do with it.

Ms McCrann said very significant issues of law arose in the case and events outside the Four Courts had overtaken matters.

It was claimed the mother, as a carrier of a rare genetic condition, was concerned for her unborn baby and attended with a genetic counsellor at Our Lady’s Hospital and a special test was arranged at the Rotunda Hospital.

It was claimed Our Lady’s Hospital was expressly on notice that should the test result be abnormal, the woman and her husband had resolved she should exercise her constitutional right to travel to the UK to have her pregnancy terminated.

The mother was later informed by telephone the test results were normal when the result was abnormal, it was claimed.

The purpose of the test, it was claimed, was so the mother would be aware whether her unborn baby suffered from the inherited rare genetic condition.

The purpose of having the knowledge was so she would be able to exercise an informed choice about the remainder of her pregnancy and the treatment including the possibility of travelling to another jurisdiction for a termination.

She claimed her constitutional rights had been breached and in particular the right to determine what happens to her own body and whether or not she wished to carry a pregnancy to conclusion.

She also alleged the right to determine whether or not giving birth to a child with such a genetic condition would be in the best interests of her family in respect of current members and any future children that might be born.

The family now has the emotional physical and monetary cost of raising a severely handicapped child and the mother has to endure seeing her child live a life of suffering and of very poor quality and as a result suffered significant psychological upset and distress, it was claimed.

Mr Justice Cross approved the interim payment of €1.8m for the next four years when the case will come back before the court to assess the child’s future care needs.

Afterwards Malcomson Law, solicitors for the mother, said this was the first ‘wrongful birth’ case based upon the right to travel to come before the Irish courts and was also unique as the application of a periodic payment order to such an event had not occurred in any jurisdiction worldwide.

The family is relieved the legal battle had been resolved in favour of their child, the statement said.

“The worry and concern as to what care facilities would be available for this child into the future and indeed after the death of the parents has now been allieviated,” it said.

It is “a travesty that the issue of public policy relating to the entitlement to damages at all was maintained as an issue in the case up to a concession, some nine days before the case was due to commence.”

Litigation risk was maintained in the case by way of a public policy argument that created unnecessary worry and concern for the mother, it said.

“It is a relief that this action is resolved in such satisfactory terms for the family concerned considering the enormity of the personal calamity that exists in the context of care requirements,” it said.