Romance v. reality

‘Children are a blessing’ has become a catchcry in the highly emotive and at times shrill public reaction to the recent High Court decision of Cattanach v. Melchior. By a majority of four to three the High Court upheld a decision of the Supreme Court of Queensland to award $105,249 to a Brisbane couple, Kerry and Craig Melchior, because of a failed sterilisation operation which had resulted in the birth of their third child, Jordan.

Two days after the judgment was handed down, Deputy Prime Minister John Anderson was quoted in front-page newspaper articles: ‘It is repugnant that the birth of a healthy child, like Jordan, should be the subject of damages … Children are a gift from above, not an economic burden that can be enumerated and tabulated.’ Continuing his attack on the decision Mr Anderson asked, ‘Do we no longer understand that when we devalue and cheapen one life, we devalue and cheapen all life—and with it threaten our cherished freedoms?’

Commentators followed this rhetoric, branding the decision one that reflected the High Court’s ‘progressive devaluation of human life’ and that reduced the existence of a child to that of a chattel (Angela Shanahan in The Age, 22 July 2003). A further issue raised in the fallout from the case was the ‘nightmarish’ consequences in terms of further litigation, with dire warnings that the ‘risk of lawsuits would force doctors to stop sterilisation procedures and even prescribing the Pill’. (Herald Sun, 18 July 2003)

The case certainly raises difficult ethical and moral issues, and this is reflected in the split decision of the court and the six separate judgments generated by the seven judges. However, these broad statements about the value of human life and the rather hysterical tenor of the public reaction obscures the actual legal issues with which the High Court is grappling and the complex realities of pregnancy, birth and raising a child.

The issue before the High Court was not, of course, ‘What is the value of human life?’ but was limited to whether the costs of raising and maintaining a child born as a consequence of a failed sterilisation operation should be recoverable by the child’s parents as damages in a negligence action.

The doctor’s negligence was not at issue in the High Court proceedings. The lower courts had found that the doctor had been negligent in failing to inform his patient, Mrs Melchior, after a sterilisation operation in 1992, that the procedure may have been ineffective. The risk of the failure of the sterilisation procedure arose because the doctor had clipped only the left Fallopian tube. Prior to the operation Mrs Melchior had informed the doctor that she believed her right ovary and right Fallopian tube had been removed in a childhood operation. However, following the birth of Jordan in 1997, it was established that the right Fallopian tube was still intact and that during the sterilisation operation the tube had been obscured by adhesions which were a legacy of the childhood operation. The doctor’s failure to inform Mrs Melchior that the sterilisation may have been ineffective meant that she did not avail herself of further tests, which could have established her fertility. The courts found that this negligence was a material cause of the subsequent pregnancy and the birth of Jordan.

The lower courts had awarded Mrs Melchior damages for pain and suffering associated with the pregnancy and birth (which included a period of post-natal depression), for lost earning capacity and for medical expenses, and a small sum was awarded to Mr Melchior for ‘loss of consortium’. These damages (a total of $106,672) were not challenged on appeal. It was rather the additional award of $105,249 for the costs of raising Jordan to the age of 18 that was the subject matter of the appeal.

The task of the High Court judges was made difficult by the conflicting authorities in both Australian and overseas jurisdictions that had dealt with similar cases. Many of the US cases had adopted a policy of limiting recovery in failed sterilisation cases to exclude the costs of child-rearing. Each of the judges also considered a recent House of Lords decision that had limited recovery to the costs associated with the pain and suffering of childbirth. This decision had reversed a trend in English case law to allow the cost of child-rearing expenses and has been subject to considerable criticism—particularly as its effect in subsequent cases was a tendency to discriminate between the birth of a healthy child (for which no damages are recoverable) and the birth of a disabled child (for which damages have been held recoverable). The majority judges in the Melchior case found this distinction both illogical, arbitrary and highly discriminatory.

In this case, all the judges accepted that the damage to the Melchiors was a reasonably foreseeable consequence of the negligent act of the doctor. However, in deciding whether the loss flowing from that damage should be recoverable by the parents, the judges disagreed about whether there were sound public policy reasons to limit recoverability of damages and characterised the damage in significantly different ways.

Two of the minority judges characterised the parent-child relationship or the actual birth of the child—rather than the economic consequences flowing from the birth—as the damage suffered by the parent. In couching the damage in terms of the actual child or the parent-child relationship, the minority judges could then argue that it would be repugnant to attempt to place a monetary value on the life of the child. In the minority judgment of Justice Heydon:

‘Human life is invaluable in the sense that it is incapable of valuation … The duty cast on parents which flows from the arrival of new human life is also incapable of valuation or estimation or discharge by payment.’

It is this focus on the sanctity of human life which resonates in the insistent theme in media reports that the birth of a normal healthy baby is always a blessing. Justice Kirby (in the majority) refutes the universality of the ‘blessing’ argument as representing ‘a fiction which the law should not apply to a particular case without objective evidence …’. Even Justice Hayne in his minority judgment concedes that the notion that the birth of a child is always a blessing imposes on the parents ‘a paradigm of family life which may or may not be apt’. Certainly the effect on a family’s circumstances of the arrival of an unplanned child might range from mild inconvenience to financial, emotional or medical disaster. Consider the circumstances of Mrs Melchior, who conceived Jordan at the age of 44 and with two daughters already aged eight and 11 years, as outlined by the trial judge:

‘Mrs Melchior made a considered choice of sterilisation in order to avoid the burdens—economic, medical and practical—of bearing another child in middle age. Her evidence was that she loved her son, but his arrival in the household was a major disruption to the family, she was depressed and angry at the effect a new baby had on the life she had planned, and she found his care, as an energetic three year old, exhausting.’

Both the trial judge and a majority of the High Court judges recognise that the fiction of the birth of a child inevitably constituting a blessing should not be imposed on this reality—a reality of family life which is not uncommon whether a child is planned or not.

In support of the argument that no damages should be recoverable for the cost of the child’s upbringing, Justice Heydon was the only judge to argue that the publicity associated with the litigation and the discovery by Jordan in later years that his birth was unwanted would result in emotional distress to the child. In my experience this has been the most common reaction to the case in casual conversation.

However, the other judges claim convincingly that this is entirely speculative: it is the manner in which the parents explain themselves to Jordan and how they express their love for the child after his birth that will affect whether the child is hurt by the knowledge of the litigation. Indeed there is no reason to assume that had the Melchiors not been able to seek damages, the circumstances of Jordan’s conception and birth would never have been mentioned to him. In everyday life—and outside the context of failed sterilisation operations—each of us has encountered perfectly well-adjusted adults who are aware that while their birth may have been unwanted or unplanned, they have experienced a happy and
loving family life. As Justice Callinan wryly commented, ‘There are many harsher truths which children have to confront in growing up than the knowledge that they were not, at the moment of their conception, wanted’.

Three of the majority judges found that the damage suffered was not the creation of the parent-child relationship or the birth of the child per se, but the economic burden that must be borne by the parents as a consequence of the parental obligations that arose on the child’s birth.

This distinction is crucial to an understanding of the majority judgments. The emphasis is not on the birth of the child as an injury or harm, but on the financial consequences of that birth. The majority judgments acknowledge that while Jordan’s birth may not have been wanted, once born he was accepted and loved by his family. ‘In the real world, cases of this kind are about who must bear the economic costs of the upkeep of the child. Money, not love or the preservation of the family unit, is what is in issue.’

The majority judgments dismiss the notion that it is too difficult to calculate the costs of a child’s upbringing—noting that for years courts have been called on to place values on incalculable items such as pain and suffering (for example, the assessment of Mrs Melchior’s pain and suffering in pregnancy and childbirth), loss of reputation and personal injuries such as the loss of a limb. The calculation of the financial costs of raising a child is commonplace in family law and child support proceedings and for insurance purposes.

The majority also draws a crucial distinction between the emotional benefits flowing to the parents from the birth of a child and the economic burden of raising a child. In finding that these two aspects are incommensurable and that the costs of raising a child should not be discounted by an amount representing the joys and rewards of parenthood, the judges employ the analogy of the coalminer who, ‘forced to retire because of injury, does not get less damages for loss of earning capacity because he is now free to sit in the sun each day reading his favourite newspaper’.

The majority judgment in Cattanach v. Melchior does not represent an assault on the sanctity of human life. Instead it marks a careful consideration of legal and ethical issues in a novel area of negligence law, eschewing the arbitrary application of emotive assertions in relation to ‘blessings’, ‘key values in family life’ and ‘litigious time bombs’. (per Kirby J, p39) Indeed the floodgates argument—that allowing the Melchiors’ claim will foster a raft of similar applications relating to failed sterilisation procedures—though prominent in the minority judgment of Justice Heydon, is not in itself a bar to recovery of damages. As the majority judges point out, it is up to the legislature to act in relation to concerns about the potential number and magnitude of claims.

Though criticised for its ‘legalism’, the majority judgment rejects the attractive simplicity of the broad value statements so readily identifiable in the government and media responses to the decision. By doing so, the High Court judgment avoids imposing the fiction of some ideal model of the family upon the complexity and the very real messiness of family life. 

Virginia Bourke is a lawyer. As part of a Master of Arts in English Literature at Monash University she studied constructions of the family which emerge from Australian and US family law judgments concerning surrogacy arrangements.



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