Wrongful Birth

If parents receive negligent advice or treatment that result in an unexpected birth, a claim known as a wrongful birth claim may be made. 

Wrongful birth can occur for many reasons including when a health professional:

• supplies defective contraception
• doesn’t warn of the risk of contraceptives failing to prevent pregnancy
• doesn’t warn of the risks of failure of sterilisation procedures to prevent contraception
• negligently performs a sterilisation procedure such as a vasectomy for men or tubal ligation (tying of fallopian tubes) for women, resulting in pregnancy
• negligently performs an abortion so the woman remains pregnant
• negligently implants multiple embryos, resulting in multiple births, when the parents wanted to only have one child
• fails to diagnose a condition or tell parents of that diagnosis for which they could lawfully terminate the pregnancy

Australian states have different laws about what compensation parents can claim in a wrongful birth case.

In NSW, and some other states, there are restrictions in place for claims if the child born is healthy and without disability. In these states, the parents cannot  claim the costs, including loss of earnings, of raising the child.  They can only claim costs associated with the pregnancy and labour. If their child born has a disability, there may be compensation for upbringing costs due to the disability.