One is fun, two is double trouble

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 [2003] 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) [1999] 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?



Filed under children, courts, feminism, law, morality, motherhood, tort law

9 responses to “One is fun, two is double trouble

  1. My immediate reaction to the story was to worry about how the children would feel when they are old enough to understand the action their mothers have brought against the doctor. I have some sympathy for the financial argument that perhaps they were only prepared for one child and the added cost of twins could be difficult for them, particularly given that (it is being reported that) they specifically told the doctor they only wanted one embryo implanted. But for the mothers to bring an action saying they were “devastated” when they learned they were having twins will surely be distressing to the children when they are older. I’m sure every parent of twins is shocked when first learning they are carrying 2 babies, but at the end of the day, you just have to get over it and get on with it and focus on the important things which are raising and enjoying your children, not looking for someone to blame.

  2. pete m

    I think of more distress will be not knowing their father, and perhaps (not knowing their plans) not having a decent male role model.

    The fact is she changed her mind on 1 over 2 embryo implants at the last minute, but still, this should have been respected.

    I do feel uneasy about calculating the “loss” caused to them, and then working out the gain. In my case, there is not enough money in the world to represent the gain my daughter is. Not even close. The joy I get each day living with her is irreplacable and incapable of calculation by some commercial quality.

    Sounds gushy, but it is just how I feel.

  3. Pete, I feel exactly the same way. The joy my daughter provides is unable to be calculated. If I had two of her – gee, what a handful, and a financial burden, but also double the joy!

  4. Could you sue a condom company if it broke?

    In reality, I am more concerned that these mothers are able to identify such significant losses in their lives that they need to sue for having a second child. They should have enough support – psychological, physical and financial – to manage the extra baby.

    This is where the House of Lords’ observation about the benefit to society of healthy children comes in – the logical conclusion of which is that the community, society or state needs to shoulder a great deal of the burden of children, in order to avoid a healthy child being nothing but a great loss to someone. Children have historically always been a group concern, yet suddenly we have atomised our social units into nuclear families, and parents can’t cope alone.

    Maybe there’s an argument that there has been some serious loss – that a doctor, aware of the lack of finances of these mothers, failed to respect their wishes. That’s a big call. But then again, I know of a family who had twins, whose mother was admitted to hospital three times in the first year with exhaustion. No doubt about it: raising babies is an EXTREME SPORT. If you are inadequately supported in early parenting, then there is indeed a risk that you will suffer a great loss in your life, and that your child will be resented and depressed. This is a loss to everyone, not just the parents and the child. The parents’ recourse for an unwanted child should not be to a doctor, but to society at large.

    If mothers are provided with the means to raise twins adequately and healthily, then I must agree with the House of Lords’ view. If a child can be raised without pitching its parents into some kind of backward disrepair, then you take a child as it comes. Having children is – to quote J’amie – “like totally random”.

    Which brings me to the sister cases of the ones you’ve described – those where parents of severely disabled children sue doctors for poor obstetrics. Is this appropriate either? Taking my analysis above – well, maybe it is. But taking the House of Lords’ approach – that you take a child as you find it – you may find a different outcome.

    One of our playgroup mums contracted a common virus in the first three months of pregnancy, and now has a little baby who is profoundly deaf and who they know has some brain damage. She can’t sue anyone, she just has to rely on the support and humanity of the state to make sure her little one is cared for, and that her family doesn’t fall apart. Why should they be any different from those who relied on faulty obstetrics?

    Maybe when it comes to children and babies, the risk of introducing “fault” is that the value of children themselves is the subject at hand. Even more strength of argument for decent health care and support, rather than medical negligence cases, which do not suit the subject matter whatsoever.

  5. And by the way, for LE’s readers, I’m about to have a second baby, so I’m closer to the “extremes” of parenting than usual at the moment!

  6. I agree with Guera, what wonders this will do for their children’s self-esteem.

  7. Pete M and Cherry Ripe – I agree that the very act of “calculating their loss” is a serious concern. In preparing for this litigation the mothers would have spent many hours with their lawyers and themselves discussing and identifying all the ways their lives are worse since they had 2 babies instead of one. This process in itself must be damaging to their relationship with each other and with their children. The fact that they were able to sustain the level of hurt, outrage or anger needed to see litigation like this through to trial makes me worry about their abilities to mother even one child. The Sydney Morning Herald reported on Wednesday that the mother who bore the children “has since lost her capacity to love”, according to her partner. She also said “the pair lost their lives functioning as a couple, becoming mired in everyday tasks associated with raising two children”. Every new parent goes through these problems when they have children and you would hope they can find support through their family, the community or doctors if necessary. How is a financial settlement going to help them with this problem?
    I guess my only sympathy from the financial point of view is merely that kids are expensive to raise and the hopes they may have had for providing for 1 child might be diminished when spreading their funds between two. I know some part of my husband and my decision to have 2 children and whether to consider a 3rd are financial. Can we provide as well for 3 as we could for 2? But even if the decision is to stop at 2 if an unplanned 3rd baby was to come along we would certainly not be spending our time dwelling on the financial loss we have suffered as a result. Speaking as a very jaded former commercial litigation solicitor the trend of quantifying every human emotion and possible twist of fate is a sad development. One of the many reasons I had for getting out of the industry!

  8. Suzanne

    As I was reading this article I was disappointed in how our society is becoming concerning children. I read this for the humor factor. I came across this article while looking for some fun things to talk about with my family concerning twins as we just found out we are expecting twins. It was a shock, but a happy shock. We have 5 children already, and love them all. They are a joy to us. We do not feel the financial burden of having children because we manage our money well. I get to be at home with the children during the day while my husband works, which is a blessing I didn’t enjoy while the first three were growing up. I love being a wife and mother, something that not many women say anymore. If society would look at motherhood as noble and children as a blessing, the ills that have befallen us would slowly disappear.
    Suing for every inconvenience that we go through as part of life is also something that our society needs to turn away from. Coffee is hot! Duh!! Sidewalks have cracks! Use caution! Life isn’t fair. (Do you need a sign?)

  9. Suzanne, I know, it’s so disappointing. My initial desire was to take these two women and shake some sense into them.

    If my brothers-in-law are anything to go by, you’ve got lots of fun ahead of you. My husband remembers that they used to gang up on him (the older brother). A twin would take one of his legs each and then they’d jump on him.

    The twins read this post and naturally they thought it was terrible. One questioned the fitness of these women to be mothers.

    Motherhood is a blessing. I love my time at home with my daughter too. I work two days a week, because I need to pay the bills. After I had my daughter, one career-oriented friend asked me what I was doing about my “career”. I tried to tell her that it didn’t matter so much anymore, and my main job as far as I’m concerned is “mother”. She reacted with incomprehension.

    My aunt has a high powered career, and she was telling me that people sneer at the fact that she still manages to drive her sons to basketball practice. How awful! My aunt has started not telling people what she did on the weekend because of the sneers from others.

    So I agree: motherhood is a blessing and a joy, and I think that’s been forgotten in our modern society a bit. And I think this tendency to sue for every inconvenience is a bad thing too. As Cherry says above, sometimes bad stuff happens and there’s no one to sue. It’s better to have proper support for mothers than to broaden the categories of people you can sue.

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