To the Editor: Gerber1 appears sympathetic to the following reasons for rejecting damages in cases of wrongful birth, quoted from the High Court minority in Cattanach v Melchior,2 and judges in similar cases:

• doctors do not owe a duty of care that protects the economic interests of patients;

• the birth of a healthy child should not be regarded as a legal harm, because the birth of a healthy child is a good thing, the cost of rearing a child does not exceed the value of parenthood, and parents ought not to enjoy the advantages of parenthood without the concomitant responsibilities;

• awarding damages would indicate to the child that he or she was unwanted; and

• doctors should not be liable for most of the costs of rearing a child, because parents have a choice of rearing the child or surrendering it for adoption.

As to the first point, why should doctors be exempt from any loss that results from their negligence? Depicting this duty as one of “protecting economic interests” distorts the nature of the duty of care, which requires the duty holder to avoid foreseeable damage, which includes economic loss consequent on the negligence.

Regarding the second point, balancing the costs of rearing the child against the value and advantages of parenthood is conceptually misleading. The implication is that the value of parenthood should render the costs of rearing the child relatively trivial. A more coherent interpretation is that, because the costs of rearing the child and the value of parenthood are incommensurable, the natural love for the child and the value of parenting that follow the birth ought not discount the damage.

This interpretation also informs responses to the third and fourth points. Not wanting another child, and not wanting the particular child once it exists, are distinct concepts. The idea that Jordan Melchior was not wanted at the time his parents took steps to avoid further pregnancies is incoherent. Wanting to avoid further pregnancies and wanting to nurture the child who is born are perfectly consistent positions, whether the case involves forgotten contraception or negligent sterilisation.

Finally, the idea that, because they have the choice to keep or surrender the child, the parents should bear the costs if they keep it suggests that, once born, the particular child can be regarded as a commodity — something that the general position against awarding damages for wrongful birth repeatedly disavows. One of the judges quoted by Gerber claimed that such children would come to think of themselves as unwanted, and that this was “obscene”. The same judge’s glib claim that the parents can choose to keep or surrender the child strikes me as the obscenity.

In reply: Parker’s letter does little more than repeat the arguments that found favour with the majority in the High Court. He approaches the issues raised by this controversial litigation from an ethical perspective. Alas, the parents’ claim for the cost of raising a healthy child, conceived as a result of the alleged negligence of the defendant gynaecologist, raises the legal issue of restitution: does the law of tort recognise this head of damages as a “loss” for which parents may be compensated? Courts have, in the past, answered this question by reference to general principles based upon legal values. In the Melchior case,1 the majority departed from that hallowed principle. So be it.

Does that make Jordan Melchior a “commodity”, having a commercial value? Yes! The plaintiffs faced the choice of either keeping their son, or mitigating their “loss” by placing him for adoption. They chose the former. Priestley JA had, in an earlier case, put the issue succinctly: “After that decision was made, the defendant was not legally responsible for the parents’ financial cost of rearing the child”2 (this was restated by Kirby J in the Melchior case1).

Parker may not like it, but the law of tort has — up till now — shown more caution in awarding damages for what is called pure economic loss (ie, loss affecting purely financial interests) than it has in relation to conduct that causes damage to person or property. Before the Melchior case, that distinction had been firmly embedded in the law of tort and formed the basis of established rules governing liability for damages.3 That distinction has now been blurred by placing a financial value on the parent–child relationship.