Malcomson Law, solicitors for the family said the family of the child were relieved the legal battle has been resolved in favour of their child.
A mother who gave birth to a baby with profound disabilities after she was wrongly told a genetic test was clear has settled her action for damages at the High Court. Her lawyers say it is the first case of wrongful birth involving the right to travel abroad for an abortion to come before the High Court. An interim payment of €1.8 million was approved by the court. The woman was the carrier of a gene for a rare condition and had intended to travel for a termination of the pregnancy if tests showed her baby had the condition.
However, she was told the test was normal and she continued with the pregnancy. Her lawyers told the High Court the parents “continued happily and joyously with the pregnancy but later suffered enormous shock and grief” when the baby was born with a rare condition and has a profound disability.
Mr Justice Kevin Cross made an order that nothing be published which would identify the mother and child. The mother had sued the Rotunda Hospital, Dublin and Our Lady’s Children’s Hospital, Dublin. Full liability in the case was only conceded by letter on 13 June last.
The letter “in the particular circumstances of this case and in light of the outcome of the recent referendum repealing the Eighth Amendment to the Constitution “it was conceding liability and withdrawing the public policy defence”. Mr Justice Cross said he accepted that liability had been conceded but he would have thought the result of the referendum had nothing to do with it.
Issues of Law.
Barrister Oonagh McCrann said very significant issues of law arose in the case and events outside of the Four Courts had overtaken matters. The court heard the mother, who is a carrier of a rare genetic condition, was concerned for her unborn baby and attended a genetic counsellor at Our Lady’s Hospital. A special test was arranged at the Rotunda Hospital and it was claimed that Our Lady’s Hospital was on notice that, should the test result be abnormal, the woman and her husband had resolved she should exercise her constitutional right to travel to the UK to have her pregnancy terminated.
The woman attended for the test and was later informed by telephone that the test results were normal, when in fact the result was abnormal. She claimed her constitutional rights had been breached and in particular the right to determine what happens to her own body and whether or not she wished to carry a pregnancy to conclusion. It was claimed she was, deprived of the ability to give an informed consent and to make an informed choice in respect of the continuance of her pregnancy. She had also alleged that the right to determine whether or not giving birth to a child with such a genetic condition would be in the best interests of her family in respect of current members and any future children that might be born.
The family, it was now claimed had the emotional, physical and monetary cost of raising a severely handicapped child and the mother has to endure seeing her child live a life of suffering, and of very poor quality, and as a result claimed she suffered significant psychological upset and distress. Mr Justice Cross approved the interim payment of €1.8 million for the next four years when the case will come back before the court to assess the child’s future care needs.
Afterwards, solicitors representing the mother, Malcomson Law, said it was the first wrongful birth case based upon the right to travel to come before the Irish courts. They said the case was also unique in the application of periodic payment order.
They said the family of the child was relieved the legal battle has been resolved in favour of their child. “The worry and concern as to what care facilities would be available for this child into the future and indeed after the death of the parents has now been alleviated, a statement said.
It added: “It is a travesty that the issue of public policy relating to the entitlement to damages at all was maintained as an issue in the case up to a concession, some nine days before the case was due to commence.” It said litigation risk was maintained in the case by way of a public policy argument that created unnecessary worry and concern for the mother. “It is a relief that this action is resolved in such satisfactory terms for the family concerned considering the enormity of the personal calamity that exists in the context of care requirements,” the statement added.
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Article Courtesy of rte.ie