Joy to the world! A (healthy) child is born! Reconceptualizing 'harm' in wrongful conception.
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.
Priaulx
Nicolette
N
University of Kent, UK
D002648:Child; D035881:Compensation and Redress; D006233:Persons with Disabilities; D004739:England; D006801:Humans; D016365:Liability, Legal; D010290:Parents; D026684:Personal Autonomy; D011640:Public Policy; D046269:Reproductive Rights / Q000331:legislation & jurisprudence; D026712:Value of Life; D014930:Women; D015974:Wrongful Life