A so-called “wrongful birth” action involves a claim for injuries that take place between conception and birth.  The plaintiff, usually a child born with a congenital deficit, is typically represented by his or her parents acting as litigation guardians.  Although wrongful birth claims can arise out of a wide variety of factual situations, most commonly they involve a claim against the mother’s doctor based on deficient medical care received during pregnancy, or a claim against a pharmaceutical company for congenital problems allegedly caused by medications taken by the mother during pregnancy.

These cases raise some interesting and important philosophical and public policy questions, the most obvious of which is, how can being born ever be considered a legal wrong? Since courts have long imposed liability in such cases, the answer to this question is clearly that while life is always a good thing, a birth defect arising from the defendant’s negligence is not.

Another confounding and difficult question involves mitigation of damages and the issue of abortion.  It is a well-established principle of law that a tort claimant cannot recover from the defendant for damages that the claimant could have avoided.  Thus someone who has been injured in an accident has to seek medical care for his injuries, and if his injuries prevent him from working, he is expected to seek alternative employment as soon as he is physically able to do so.

In a wrongful birth case, the defendant will find it difficult to argue that the claim by the injured child is invalid because the prenatal injuries were so extensive that the pregnancy should have been terminated.  Given that there is a legal duty to mitigate, however, and given that abortion is legal, the defendant has a cold but logical argument that the wrongful birth could have been entirely avoided.

In wrongful birth cases the parents typically bring their own claims, seeking compensation for the medical and child care expenses that they have incurred as a result of their child’s condition, and for the loss of the enjoyment of life arising out of the extraordinary efforts that are often required from parents of a child born with a congenital birth defect.  Can the mother’s personal claim for damages be reduced because she failed to mitigate her loss by seeking a legal abortion? In a recent decision, the Ontario Court of Appeal deferred that issue to another day.  The Court concluded that the issue should not be determined in the abstract, but only on the full factual record that would emerge from a trial.

In Leek v. Vaidyanathan, the defendant doctor moved for a determination of the mitigation of damages issue.  The doctor’s motion was brought under Rule 20.01(1)(a), which permits the court to determine a question of law raised in the pleadings.  Since the motion was based entirely on the pleadings in the action, no evidence was presented, so the factual background of the case is unclear.  From the reasons of the Court of Appeal it appears that the motions judge dismissed the doctor’s motion, declaring that the mother had no legal obligation or duty to terminate her second trimester pregnancy in order to mitigate the plaintiffs’ claims for damages in the wrongful birth action.

The Court of Appeal set aside the motion judge’s order, not on the grounds that the principles of mitigation required the mother to obtain an abortion, but rather on the grounds that this issue ought not to be determined solely as a question of law.  In a unanimous judgment, the three justices hearing the appeal stated as follows:

The pure question of law raised by the motion is whether a woman can ever be required to mitigate her claim for damages in a wrongful birth action by having an abortion.  This is an important issue of law, raising significant policy considerations, and such questions are normally better determined on a full factual record after trial, where the judge has been able to make findings that form the basis for the legal analysis and conclusions….

Although it is inconceivable that any pregnant woman will ever be ordered by a court to undergo an abortion, the case does leave open the possibility that the woman’s decision to proceed with her pregnancy to term, although she knows that her child will be born with significant deficits, could reduce her damages claim in any subsequent wrongful birth action.  If this case, or some other case raising the same issue ever does proceed to trial, it will be interesting to see what sort of circumstances might move the court to conclude that the decision to forgo abortion constitutes a failure to mitigate.

Richard Hayles, B.A., J.D.

Link: Leek v. Vaidyanathan, 2011 ONCA 46

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