A mother of IVF twins is suing the doctor who runs the IVF clinic because she says that she only wanted one child implanted, not two, and she has now suffered emotional stress, financial stress and problems in her relationship with her lesbian partner. The mothers are seeking $398,000 to cover the costs of raising one of the girls.
Such cases are known as “wrongful birth” cases. The case of Cattanach v Melchior  HCA 38 set the precedent for these kind of cases. In Cattanach, a couple sued a doctor over a tubal ligation. The wife had told the doctor that she had had her right fallopian tube removed as a teenager, and accordingly, he only clipped her left fallopian tube. This was incorrect. Four years later, she discovered she was pregnant, and gave birth to a son. The parents successfully sued for damages compensation for (1) losses suffered as a result of the pregnancy and birth (2) losses suffered by the husband for a “loss of consortium” and (3) damages representing the costs of raising the child. They were successful (to varying degrees) in all claims. The High Court confirmed that the plaintiffs were entitled to damages for the third head of damages.
By contrast, the English House of Lords rejected a claim of wrongful birth in almost identical circumstances to Cattanach in an earlier case of Macfarlane & Anor v Tayside Health Board (Scotland)  UKHL 50. Personally, I find the words of Lord Millett in that case to be persuasive:
In my opinion the law must take the birth of a normal, healthy baby to be a blessing, not a detriment. In truth it is a mixed blessing. It brings joy and sorrow, blessing and responsibility. The advantages and the disadvantages are inseparable. Individuals may choose to regard the balance as unfavourable and take steps to forego the pleasures as well as the responsibilities of parenthood. They are entitled to decide for themselves where their own interests lie. But society itself must regard the balance as beneficial. It would be repugnant to its own sense of values to do otherwise. It is morally offensive to regard a normal, healthy baby as more trouble and expense than it is worth.
This does not answer the question whether the benefits should be taken into account and the claim dismissed or left out of account and full recovery allowed. But the answer is to be found in the fact that the advantages and disadvantages of parenthood are inextricably bound together. This is part of the human condition. Nature herself does not permit parents to enjoy the advantages and dispense with the disadvantages.
The High Court’s approach in Cattanach is to be contrasted with its approach in the wrongful life cases, whereby parents alleged that they would have aborted a child had they known of the child’s disability or potential to suffer a disability (see previous blog post on topic). The High Court found that the plaintiffs were not entitled to damages from the doctors in those cases.
My brothers-in-law are identical twins. I understand that it was a struggle for my mother-in-law when they arrived, particularly as she already had one small child at the time. I must admit that when I had my first scan when I was pregnant, I felt a little nervous. What if I was pregnant with two children? It would be both exciting and scary. It would mean I would have to totally reassess our finances and our way of living. But would I change it? I don’t think so.
As stated in this article in The Age by Carol Nader, there is a tension between the modern day view that parenthood is a choice, and the older view that a child is a blessing. In the past, women could not control their fertility easily. There was little choice as to whether to have children or not. Having children was seen to be a woman’s only role in life. Now we can control our fertility, and intervene in ways previously thought unimaginable to determine whether a foetus is disabled or to determine what gender it is. This gives us more choice and flexibility. It is undeniable that part of the social revolution whereby women can enter the workforce has arisen because women can now control their fertility. I am profoundly glad that I can study and work, and control when I have my next child. I’m not just tied to the kitchen sink, barefoot and pregnant. On the down side, some women have found that they have left it too late to have children, or have experienced severe difficulties as a result. There’s pros and cons to everything.
The result is that we now see parenthood as a choice rather than something that inevitably occurs. And we may feel angry if we can’t control our choice to become a parent in the way that the medical profession told us that we could.
I do not feel comfortable with the case of the reluctant mothers above. I understand that they did not want two children at once, and that they were distressed by the fact that there was an unexpected addition. As I have explained above, I think I would panic if I found out I was having twins. But I can’t help agreeing with Lord Millett. A happy, healthy child is a blessing. In this day and age, a woman is lucky to be able to conceive via IVF. And I also worry about the impact that this case may have on the twins when they are older. They will know that their mothers only wanted one of them, and they may feel rejected. I think that the mothers should not succeed. Sometimes life doesn’t turn out the way we planned where children are concerned. But my own daughter is such a blessing that I can’t quite fathom the distress of these mothers. I think of friends who would love to have children (in both heterosexual and same sex relationships). Surely two isn’t just double trouble, it’s also a double blessing?