By Dave Andrusko
In a decision that was a first on multiple fronts, an unidentified Irish woman has been given an interim award of approximately $2.l million dollars for the “wrongful birth” of her son.
The boy has the same rare genetic condition as his mother and requires around the clock care.
The award was for the next four years after which “the case will come back before the court to assess the child’s future care needs,” according to Mr. Justice Kevin Cross.
The Irish Times’ Mary Carolan reported that the mother’s lawyers
said this was the first ‘wrongful birth’ case based upon the right to travel to come before the Irish courts and was also unique as the application of a periodic payment order to such an event had not occurred in any jurisdiction worldwide.
The justices agreed with the contention of the lawyers for the mother that because the genetic counselor had incorrectly told her the test results were normal, she “was deprived of the ability to give an informed consent and to make an informed choice in respect of the continuance of her pregnancy.” The mother “had planned to exercise her constitutional right to travel to the UK for an abortion if the test had shown her unborn child had the same debilitating genetic condition,” the newspaper reported.
Tim Healy, reporting for the Independent, provided additional background. He wrote that because of her own condition, the mother
was concerned for her unborn baby and attended with a genetic counsellor at Our Lady’s Hospital and a special test was arranged at the Rotunda Hospital.
It was claimed Our Lady’s Hospital was expressly on notice that should the test result be abnormal, the woman and her husband had resolved she should exercise her constitutional right to travel to the UK to have her pregnancy terminated.
The mother “claimed her constitutional rights had been breached and in particular the right to determine what happens to her own body and whether or not she wished to carry a pregnancy to conclusion,” Carolan reported. “She also alleged the right to determine whether or not giving birth to a child with such a genetic condition would be in the best interests of her family in respect of current members and any future children that might be born.”
The mother sued The Rotunda Hospital, Dublin, and Our Lady’s Children’s Hospital, also of Dublin. In a statement, the family said it “a travesty that the issue of public policy relating to the entitlement to damages at all was maintained as an issue in the case up to a concession, some nine days before the case was due to commence.”
That was a reference to the letter sent June 13th which stated that “in the particular circumstances of this case and in light of the outcome of the recent referendum repealing the Eighth Amendment to the Constitution” liability was conceded and the public policy defence was withdrawn.