Wrongful Birth and Wrongful Life Claims: What to Know About Compensation in Australia
Unplanned pregnancies and births have long been a sensitive topic, not just for parents, but also for society and the courts. One way the law has grappled with these issues is through wrongful birth claims, sometimes also called ‘wrongful birth actions’.
A wrongful birth claim is made when a GP, gynaecologist, hospital, or other medical professional makes an error or acts negligently, leading to either:
- An unwanted pregnancy, or
- A planned pregnancy with an unintended outcome. For example, where a genetic abnormality should have been detected, and the parents would have lawfully chosen to terminate the pregnancy if they had been properly advised.
Below, we’ll guide you through the complexities of wrongful birth claims, including real case examples, who may be eligible, and the types of compensation that may be available. We’ll also touch on ‘wrongful life claims’ and how they differ from wrongful birth claims.
If you’d prefer to speak with someone directly, our wrongful birth lawyers are here to listen with empathy and provide free, expert advice tailored to your situation.
Common examples of wrongful birth claims
Our lawyers have supported many families through wrongful birth claims. Some of the most frequent situations that can lead to a wrongful birth claim include:
- Failed sterilisation procedures: improperly performed vasectomies, tubal ligation, or sterilisation surgeries.
- Inadequate follow-up care: failure to conduct or interpret post-operative testing after sterilisation.
- Negligent contraceptive advice: including incorrect guidance on the risks of pregnancy.
- Failure to diagnose pregnancy: resulting in delayed options for lawful termination.
- Genetic testing and counselling errors: negligent testing, misinterpretation of results, or failure to provide accurate advice.
- IVF mistakes: such as embryo mix-ups or procedural errors.
- Missed or delayed diagnosis of maternal conditions: where the lack of advice prevented the option of lawful termination due to likely congenital disabilities or birth defects.
- Other negligent medical advice or errors: where parents lost the opportunity to make an informed decision about pregnancy.
These are just some of the wrongful birth claims we’ve helped our clients with over the years. If you become pregnant or gave birth to a disabled child due to a medical professional’s negligence, you may be entitled to compensation.
To find out whether your particular situation qualifies, speak to one of our specialist wrongful birth lawyers today. In a free consultation, we’ll explain your rights and every legal option available to you and your family.
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How does compensation work in a wrongful birth claim?
In a wrongful birth claim, compensation (also known as ‘damages’) is typically based on the specific circumstances of the case, including the state you live in and whether your child is born with a disability.
Here’s a breakdown of how compensation works in different states:
States with statutory restrictions: NSW, Queensland and South Australia
These states have stricter limitations on the types of compensation that can be claimed in wrongful birth cases, especially if the child is born healthy.
If the child is born with a disability:
- Parents may be entitled to compensation for the additional costs of raising a child with a disability.
- The claim can be broader, covering both direct medical costs and the long-term care needs associated with raising a child with a disability.
If the child is born healthy:
- The compensation is generally more limited and focuses on the costs directly related to pregnancy and childbirth.
- Parents may also be able to claim for physical injury suffered during delivery, or for related mental health issues that might affect their ability to work or function normally.
- The costs of raising a healthy child are typically not covered in wrongful birth claims in these states, even if the pregnancy was unwanted.
States with fewer statutory restrictions: WA, Victoria, the NT and the ACT
In these regions, you can generally claim costs related to raising a child, whether they have a disability or not.
However, if the child is born with a disability:
- Similar to the restricted states, parents can claim compensation for costs tied to the child's disability.
- The amount of compensation may be greater than in states with more restrictions, covering a broader range of needs such as long-term care, medical expenses, and specific accommodations.
If the child is born healthy:
- Parents are allowed to claim the costs of raising a healthy child. This includes the general living costs associated with raising the child, as well as the costs of pregnancy, childbirth, and any physical or psychiatric injuries suffered by the parents.
- The claim is less focused on the immediate financial burden of the pregnancy and delivery and more on the lifelong financial impact of raising an unwanted child, regardless of whether they are healthy or have a disability.
If you’re unsure what compensation you can claim in your state, reach out to our specialist lawyers. We’ll investigate your case and provide advice on the types of support available — completely free of charge.
What types of compensation can I claim?
Depending on the circumstances of your case, your wrongful birth compensation may include:
- Lost income: If your injury or circumstances prevent you from working.
- Medical expenses: For your own treatment or your child’s care related to their disability.
- Special schooling or education costs: If your child requires additional support or specialised programs.
- Equipment and aids: Such as mobility devices, hearing aids, or other support tools.
- General living costs: Food, utilities, or household expenses associated with your child’s needs.
- Therapy and counselling: Including physiotherapy, occupational therapy, or psychological support.
- Home modifications: Ramps, widened doorways, or bathroom adaptations to accommodate your child’s needs.
- Respite care or support services: Help with daily care, respite, or specialised childcare.
- Travel expenses: For medical appointments, therapy sessions, or related travel.
- Pain, suffering, and loss of enjoyment of life: Compensation for the emotional impact of the pregnancy and birth.
Generally, compensation for raising a child is calculated up to age 18. However, this isn’t set in stone, particularly when it comes to children with disabilities. There are arguments to extend disability-related expenses or future care costs if the parents cannot afford them.
In fact, in Waller v James (2013), the court confirmed that any extension of compensation should be considered on a case-by-case basis, guided by policy. This means that if your child is likely to need care beyond age 18, your lawyer can argue for an extended award.
That’s why it’s so crucial to work with a lawyer experienced in wrongful birth claims. Our expertise ensures no stone is left unturned and that your family receives the full compensation you deserve.
When can’t I make a wrongful birth claim?
Australian courts have dealt with wrongful birth cases many times, and over the years, some clear limits have been set. It’s also worth remembering that the rules can differ between states, so what applies in one place may not apply the same way in another.
Here are three main situations where a wrongful birth claim usually won’t succeed.
If the pregnancy could not have been terminated
In Nouri v Australian Capital Territory, parents sued after a doctor failed to diagnose their child’s disability in time for them to consider termination.
The ACT Supreme Court accepted the doctor had been negligent in delaying the diagnosis, but found the earliest realistic point for diagnosis was around 30 weeks — well past the stage where a lawful abortion could reasonably have been obtained.
In other words, even if they’d been told earlier, the parents probably wouldn’t have had access to a termination, so the claim failed.
If the child is healthy (in many states)
As discussed, in NSW, Queensland and South Australia, parents can no longer claim the ordinary costs of raising a healthy child after a failed sterilisation or negligent medical advice.
If no medical negligence was involved
Wrongful birth claims are based on a medical professional making a mistake, acting carelessly or otherwise providing poor treatment. This is known as ‘medical negligence’.
This means that if a pregnancy happens despite proper medical care, or if no advice or treatment was ever sought, there’s usually no basis for a wrongful birth claim. You can read more about proving medical negligence below.
Cattanach v Melchior: A landmark wrongful birth claim in Australia
Mrs Melchior believed she no longer had a right fallopian tube because of a previous surgery. She went ahead with a tubal ligation performed by Dr Cattanach, but the right tube was still intact. As a result, she became pregnant and later gave birth to a healthy son.
The Melchiors sued Dr Cattanach, arguing he was negligent for not checking the right tube and for failing to warn them about the risk of pregnancy. They sought compensation not just for pain and suffering, but also for the cost of raising their child until adulthood.
The High Court agreed: parents could claim the costs of raising a healthy child, not only a child with a disability. But this decision sparked a lot of controversy. NSW quickly changed its laws to block such claims for healthy children, and Queensland and South Australia followed suit.
Wrongful birth and wrongful life: what’s the difference?
It’s important to understand the distinction between wrongful birth and wrongful life claims.
In a wrongful birth claim, it’s the parents who seek compensation for the impact of an unplanned pregnancy or the birth of a child with a disability.
A wrongful life claim is different. Here, the claim would be made by (or on behalf of) the child, arguing that medical negligence caused them to be born with a disability that could have been avoided. For example, if the parents had been properly warned or if the pregnancy had been terminated. The argument isn’t that life itself is ‘wrong’, but that the child’s disability is the result of a medical failure.
Two landmark High Court cases that dealt with wrongful life happened in 2006:
- Harriton v Stephens: where a child was born with disabilities after the mother contracted rubella.
- Waller v James: where a child was born with a genetic condition (Anti-thrombin 3 deficiency).
In both wrongful life cases, the High Court held that a child cannot sue simply for being born, even with a disability. This is because it isn’t possible to meaningfully compare life with a disability to non-existence.
In summary: what does this mean for me?
As a parent, this means you can only claim damages for wrongful birth. You cannot bring a wrongful life lawsuit on behalf of your child, and your child can’t make one themselves — no matter the circumstances. If you’re considering legal action, your case would focus on the impact on you as the parent, not on the child bringing a claim themselves.
How we can help with your wrongful birth claim
For more than 25 years, our lawyers have supported parents through complex wrongful birth claims with empathy and expertise. When you work with us, we will:
- Make sure you and your child get the right support and treatment from the start.
- Guide you through every stage of the claims process and keep you updated so you’re never left in the dark.
- Collect strong medical and legal evidence to prove negligence.
- Handle negotiations with the insurer on your behalf.
- Challenge decisions if your claim is denied or the compensation offered is too low.
- Explore extra entitlements, such as nervous shock claims or Total and Permanent Disability (TPD) benefits, if they apply to you.
- Secure compensation for the long-term financial and emotional impact of raising a child with a disability.
- Work on a No Win No Fee basis, so you can get risk-free support and justice for your family. We cover all upfront fees, and if your claim is unsuccessful, you’ll never receive a bill from us.
Frequently asked questions
To succeed in a wrongful birth claim, you need to show that your medical professional was negligent. This involves proving four main things:
- Duty of care: You’ll need to show that the other party owed you a duty of care. This means they had a legal responsibility to act for your safety and welfare. Doctors and other medical professionals automatically owe their patients this duty, so if you were treated by a registered medical professional, it’s likely they owed you this duty.
- Breach of duty: You must show that your medical professional acted (or failed to act) in a way that fell below the standard expected of a competent professional in their field.
- Causation: Your pregnancy or child’s condition must be the direct result of the medical professional’s breach of duty. You’ll also need to establish that the pregnancy or condition was a ‘reasonably foreseeable’ result of the doctor’s actions or inactions.
- Injury and loss: You need to show you suffered injury or loss, such as medical bills, lost income, or pain and suffering.
When you work with Monaco, we’ll handle each of these steps for you, ensuring your wrongful birth claim is clear, compelling, and supported by strong medical evidence. To learn more about proving medical negligence, head to our detailed four-step guide.
Time limits apply to all wrongful birth claims, with the exact deadline depending on your state.
| State | Time limit |
| NSW, VIC, SA | 3 years after discovering the child’s birth or disability was the result of medical negligence.
|
| QLD, WA | 3 years from the date of the medical negligence. |
| ACT | For physical injuries, 3 years from the date of the medical negligence.
For diseases or disorders, 3 years after:
• Discovering the disease or disorder, and
• That it was caused by your medical professional’s negligence. |
If you’re outside this time limit, there are still options available — just get in touch with our wrongful birth lawyers immediately. Over the years, we’ve helped hundreds of parents and families get their delayed claims approved.
