When birth is not a -- happy event (growing number of suits over wrongful birth, wrongful pregnancy).

• Author: Zurowski, Laura

Canadian lawsuits involving claims for wrongful birth, wrongful life, and wrongful pregnancy have attracted the attention of the media and the public alike. There appear to be a growing number of claims by parents relating to negligent sterilization and negligent perinatal (during pregnancy) care and monitoring. The Canadian Medical Protective Association's concern over rising insurance premiums as a result of growing obstetrics malpractice claims was reported in an October `97 Globe and Mail article, "Medical mal-practice system facing major collapse - huge awards to children damaged at birth cause premiums to soar". Also attracting a great deal of attention are the recent cases which have addressed the issue of fetal rights. The Edmonton Journal reported in November `97 on the case of a disabled child born with cerebral palsy stating "Fetal rights on trial as disabled boy sues mom over prenatal injuries".

While there appears to be some confusion over the meaning of wrongful birth, wrongful life, 13 and wrongful pregnancy, an Ontario Court in a recent decision clarified the distinction between the terms and provided the following definitions:

* Wrongful birth - involves cases where a child is born with birth defects following a planned pregnancy.

* Wrongful life - arises in those cases where a child is born with defects but the parents have been denied the opportunity to end the fetus' life due to a doctor's negligence.

* Wrongful pregnancy - arises in cases where a physician's negligence has resulted in an unwanted pregnancy; for example, where a sterilization procedure has been negligently performed.

Recently, the number of wrongful birth, wrongful life, and wrongful pregnancy actions appear to be more prevalent. The courts are being challenged to make difficult decisions involving the rights of the unborn fetus and the rights of the parents and mother.

Wrongful pregnancy

In a recent medical malpractice case, Kealey v. Berezowski, the parents of two healthy children sued their physician for negligently performing a sterilization. The parents requested a sterilization procedure but later found that they were to be the parents of yet another child. The parents, although financially capable of raising the child, sought damages for wrongful pregnancy. The Ontario Court awarded damages for lost income for special damages and the mother received $30,000 in compensation for general damages relating to the failed sterilization, pregnancy...