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Legislative Assembly for the ACT: 2007 Week 9 Hansard (26 September) . . Page.. 2707..


MR CORBELL (continuing):

Bill 2005 to the Assembly on 17 August 2005. Mrs Dunne wants this government to change the law to prevent a court from awarding reasonable damages for raising a healthy child born as a consequence of proven medical negligence in a sterilisation procedure. Mrs Dunne wants this Assembly to turn its back on and ignore the economic and legal responsibilities flowing from the proven negligence of medical practitioners and hospital administrators. I ask Mrs Dunne: what sort of message would this send to our community, the medical profession and our hospitals?

Mrs Dunne's claim is that wrongful birth law classifies unintended yet healthy children born as a result of medical negligence as a loss or damage. This assessment of the law is simply and plainly wrong. There is an important distinction that needs to be made here. In wrongful birth cases it is neither the conception nor the birth that is wrongful; rather, it is the medical practitioner's negligent conduct from which the child was conceived. The loss or damage suffered is not the birth of the baby but the costs associated with rearing the child. Wrongful birth jurisprudence is about righting the wrong done by the doctor, not about blaming the baby for its existence. The baby is the innocent party in wrongful birth cases. This is an important distinction which Mrs Dunne's bill fails to recognise and accept.

To say that the current law of negligence causes immense long-term psychological harm to children who discover that they were unintended and that their upbringing was paid for by another is absurd. There is no rational or empirical evidence or justification for the claim by Mrs Dunne that these children suffer long-term harm. The reality is, of course, that many people may be aware that their conception was unplanned or unintended, but this does not result in an unloved or unwanted child, or equate to long-term emotional harm to the child. Indeed, the awarding of reasonable damages for raising the unintended child would enhance the upbringing of the child and see the parents no worse off. To say that wrongful birth law is about classifying a baby as a loss or blaming a child for being born is mistaken and misguided. Mrs Dunne would be right to reject completely this notion, because it is plainly not what the law in wrongful birth cases is all about.

For these reasons, the government cannot support this bill. Mrs Dunne's law would discriminate between healthy and disabled healthy children. By saying that unintended healthy children are a blessing, not a loss or damage, implies that children born with a disability are somehow a loss or a wrong that should be compensated. By continuing to allow compensation where the child has a disability, the bill invokes an implicit assumption that a disabled child should not be considered a blessing but a loss that should be compensated. The "blessing"policy argument implies that only healthy children are necessarily beneficial to their parents, whereas, as we should all appreciate, it is often the case that many disabled children are as beneficial to their parents as are children without a disability. All children born are a blessing to society and to distinguish between them in this way is both discriminatory and morally wrong.

Mrs Dunne's law would also discriminate against mothers and fathers who suffer damage from medical negligence in sterilisation procedures by denying them their legal right to be treated equally before the law. It is a well-accepted principle in law that, where someone has suffered a wrong, they are entitled to a remedy. When the High Court handed down its decision in the wrongful birth case of Cattanach v Melchior in 2003, it was greeted by the media with claims of insurance crises,


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