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Wrongful Birth Cases
We understand wrongful birth cases and will ask appropriate questions at the right stage of any referral received in relation to these case types.
After-The-Event Insurance for Wrongful Birth Cases
This is another clinical negligence case type where Temple has considerable experience and many cases are currently insured with us.
These are relatively high value cases that require significant cover to establish the additional expenditure required in raising a disabled child. We understand that whilst such a cases fall within the Clinical Negligence genre there are import differences.
We have expertise in assisting clinical negligence lawyers with these sensitive cases. We say sensitive because the issue in most cases will be that the parent or parents now have a child which was unplanned and feel that they should be compensated. Not all such cases are likely to succeed and we can look at this in a bit more detail below.
It is not always clear at inception whether breach will attach and it is expected that the solicitor will have obtained full copies of the hospital records to try and assess prospects before a referral is requested.
Whether or not liability is likely to attach will involve reviewing the case alongside what are viewed as arguably the three key authorities:
McFarlane: The husband underwent a vasectomy. Unfortunately the procedure was unsuccessful and the couple became parents to a healthy child. The House of Lords held that, although damages for the pain and suffering of pregnancy and childbirth could be awarded, the costs of rearing the child were irrecoverable.
Apply the now familiar three-stage test propounded by Lord Bridge of Harwich in Caparo Industries plc v Dickman [1990] 2 AC 605;
“Decide that reference to principles of distributive justice might provide a more just solution to the problem than an approach founded solely on principles of corrective justice.: [26]”
“The important thing to note is that there is no longer a single “correct” test”.
Parkinson: This case differs somewhat from McFarlane. The child in this case had been conceived and born due to negligent sterilisation. The child was not healthy as in McFarlane and instead was born with disabilities (such disabilities were not connected to the negligence). The Court of Appeal reiterated that the costs of rearing a healthy child must fail as in McFarlane but here allowed recovery of the extra costs associated with rearing a child with disabilities.
Rees: In this House of Lords case the Claimant was a disabled woman who had elected to have a sterilisation operation because of the difficulties her disability would cause her in raising children. The sterilisation was performed negligently and resulted in the birth of a healthy child. The House of Lords determined that Rees was more in line with McFarlane than Parkinson and so the costs of rearing the child were irrecoverable. There was an award of a lump sum ‘conventional award’ permitted to reflect the legal wrong suffered by the Claimant. As suggested by the description this is an award which may not reflect actual loss but one which it has been thought appropriate to make.
Key Points
- In cases of wrongful birth, parents are not able to recover the costs of upbringing and caring for a normal, healthy child from the health authority or doctor, since such claims do not satisfy the requirements of being fair, just and reasonable.
- However, parents might be entitled to an award of compensation for the extra expenses associated with bringing up a child with a significant disability, since the birth of a child with congenital abnormalities was a foreseeable consequence of the surgeon’s negligence.
- Other cases have been reported since although nothing which materially affects the principles established above.
Temple ATE insurance – peace of mind for you and you client
If breach can be established as far as possible and the solicitor is satisfied that the parent or parents would have chosen not to go through with the birth in their particular circumstances then the instruction of experts to establish liability then follows. The cover we offer means you can be sure of our support, even though settlement may not be approved for many years.
The ATE insurance cover Temple offer can also include integrated disbursement funding to claimants for court fees, expert reports and mediator fees. This helps ‘unlock’ the claim and puts a claimant in the position of being able to pursue their claim.
Bespoke Underwriting
For complex cases, our experienced team provides quick, commercial decisions to get your funding in place.
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Temple have consistently delivered a high standard of service. Their team is responsive, professional, and approachable, ensuring queries are dealt with promptly and efficiently. The customer service is excellent, with a personalised approach that reflects a genuine understanding of our needs. Their online portal is intuitive and easy to use, making the funding process smooth and straightforward. The disbursement funding facility is particularly helpful—it’s a practical and well-managed solution that supports case progression without unnecessary delays. Overall, Temple offers a reliable, user-friendly, and client-focused service that we would confidently recommend.
Spencer KnaggsBurnetts
Over the last decade, I have been fortunate to enjoy an excellent working relationship with Temple Legal Protection.
As a small niche practice, it is essential to have collaborative partners who understand the needs of my business and who are responsive to those needs.
From after the event funding through to disbursement funding, the services provided by Temple are exceptional. They have provided to my clients, an essential funding lifeline, at modest cost that other funders simply would not offer.
The Temple Team are responsive, efficient and willing to listen.
I cannot commend Temple and their team highly enough.
Diane RostronSpecialist medical negligence solicitor at Addies Solicitors
I have relied exclusively on Temple for ATE insurance for the past 8 years. They were willing to provide cover to a firm newly commencing asbestos disease work. They recognised my previous experience with other firms and expertise in this area of practice. The product itself is excellent, providing all the cover required at reasonable premium levels. The delegated nature of the scheme allows for seamless arrangement of policies through the excellent online portal. On the few occasions a claim has been necessary under a policy, Temple have been understanding, helpful and efficient in reimbursing the cost of disbursements and court fees. I have felt throughout my involvement with Temple that it is an arrangement based on mutual trust. They have demonstrated repeatedly that they rely on the skill and knowledge of those they insure, and I have been reassured that I can rely on them if claims are not successful. Without the support of Temple I would not have been able to operate my asbestos litigation practice in the way I have.
David CassPartner at Hemingways Solicitors
Temple Insurance is an intrinsic part of our litigation model, and in our view, provides maximum protection for our clients at a very reasonable premium. We have been insuring with temple insurance for about 15 years, and before that we tried several other insurance companies. Temple have been supportive all the way through. They are not overly risk averse, and when a claim fails, they assess our claim fairly and rapidly. I cannot remember a single time when our claim for reimbursement of disbursements has been refused unfairly. Before we used Temple, time and again we faced unreasonable challenges to our insurance claim. I would recommend any litigation department to rely exclusively on the temple insurance product.
Kevin LiddyLiddy’s Solicitors
Because of the complex nature of these cases, there is a need for a range of very experienced experts. Disbursement funding means I can instruct them directly, not going via an agency, and I can pay them promptly without any uplift.
Lorraine TaylorBridge McFarland
My firm and I have worked with Temple for 20 years now. At the time we began our journey with Temple, we were a new firm and Temple were also fairly new to the market at the time. Over the 20 years we have built an excellent relationship of trust and support and it is thanks to Temple and their collaborative, trusting, and open approach to the work that we do and their willingness to take calculated risks with us that we have managed to achieve the very best for our clients in some very tricky and challenging cases. Temple have always been ahead of the curve. True leaders in their field and in our view, simply the best.
MBE Mehmooda DukeMoosa–Duke Solicitors
Resources & Downloads
Access the technical documents and application forms you need to secure ATE insurance and disbursement funding for your clients
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Common FAQs
Some of the key questions about wrongful birth cases.