Failed sterilisations and the unwanted child: a new medicolegal minefield?

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.