Should moral theories and personal
opinion influence judicial reasoning in
cases concerning wrongful conception?
1
, There are extensive arguments which suggest that judges decide cases in a logical and rational way, whilst
others believe that they act in an arbitrary and illegitimate way, and a substantial number of individuals
believing in the middle grounds to ultimate discretion. A part of a judges’ role is to make complex
decisions that benefit the parties involved and society as a whole. Society has certain moral standards
which the law has a duty to support and promote because the common law creates a certain vision which
citizens confer to. Moral theories and person opinions are imbedded in judges where they are likely to look
at their past decisions on issues of law and experience to see if the previous decision contradicts with
societies view at the time leading to the judges “believing their own” when it comes to giving their
judgement.1 On the other hand, judges have a responsibility is to find and apply the law to the given facts
of a case where morals and personal opinions should not influence their reasoning as the law is not
concerned with feelings but is based on statutory interpretation and judicial precedent. Wrongful
conception cases entail medical negligence claims where the mother or father have undergone an
ineffective sterilization; hence the mother conceives when she was never meant to do so resulting in an
unwanted pregnancy.2 There are differences of opinion within the judicial sphere when it comes to the
reasoning of cases involving wrongful conception and whether full recovery of damages should be
awarded. The damages are split in two elements; for the pain and suffering of the pregnancy and the birth
and for the financial burden of rearing the child up and this element is seen to be controversial. 3 Laura
Hoyano highlights the distinguishing categories of “the healthy parent of a healthy child”, “the healthy
parent of the disabled child” and “the disabled parent of a healthy child” which is going to be explored in
this essay.4 Using an array of case law and journal articles conclusions can be drawn on the way the courts
are dealing with these issues – using the law or their own moral theories and opinions.
Public policy was a factor that was taken in consideration by the judge in Udale v Bloomsbury Area Health
Authority5 where sterilisation was performed negligently and public policy was against awarding damages
for the birth of a healthy child. This decision was overruled in Thake v Maurice6 where the court decided
that damages should be awarded for the pain and suffering of the pregnancy and the birth. But in Emeh v
Kensington and Chelsea and Westminster Area Health Authority 7, the court refused to give damages as
there was no rule in public policy which precluded recovery of damages for the physical discomfort
suffered by the claimant and for maintaining the child. After these cases the courts refused to allow public
policy to interfere with the ordinary negligence rules.8 This conclusion seems premature as the policy gates
1
Lord Neuberger, “Judge not, that ye be not judged’: judging judicial decision-making” (F A Mann Lecture, 2015)
<https://www.supremecourt.uk/docs/speech-150129.pdf>
2
Brenda Hale, “The Value of Life and the Cost of Living – Damages for Wrongful Birth” (2001), British Actuarial Journal,
750
3
N. Priaulx, “Letter from the UK: Tort Law and Damages for the Unwanted Child” (2007), Journal of Legal Economics, 55
4
L. Hoyano, “Misconceptions about Wrongful Conception” (2002), The Modern Law Review, 883
5
[1983] 2 All ER 522
6
[1986] QB 644
7
[1985] QB 1012
8
Raluca Rosu, “Unsolicited Parenthood as result of Negligence” (University of Westminster Law School, March 2014).
<https://www.academia.edu/6581158/_Wrongful_Conception_Unsolicited_Parenthood_as_Result_of_Negligence
2
opinion influence judicial reasoning in
cases concerning wrongful conception?
1
, There are extensive arguments which suggest that judges decide cases in a logical and rational way, whilst
others believe that they act in an arbitrary and illegitimate way, and a substantial number of individuals
believing in the middle grounds to ultimate discretion. A part of a judges’ role is to make complex
decisions that benefit the parties involved and society as a whole. Society has certain moral standards
which the law has a duty to support and promote because the common law creates a certain vision which
citizens confer to. Moral theories and person opinions are imbedded in judges where they are likely to look
at their past decisions on issues of law and experience to see if the previous decision contradicts with
societies view at the time leading to the judges “believing their own” when it comes to giving their
judgement.1 On the other hand, judges have a responsibility is to find and apply the law to the given facts
of a case where morals and personal opinions should not influence their reasoning as the law is not
concerned with feelings but is based on statutory interpretation and judicial precedent. Wrongful
conception cases entail medical negligence claims where the mother or father have undergone an
ineffective sterilization; hence the mother conceives when she was never meant to do so resulting in an
unwanted pregnancy.2 There are differences of opinion within the judicial sphere when it comes to the
reasoning of cases involving wrongful conception and whether full recovery of damages should be
awarded. The damages are split in two elements; for the pain and suffering of the pregnancy and the birth
and for the financial burden of rearing the child up and this element is seen to be controversial. 3 Laura
Hoyano highlights the distinguishing categories of “the healthy parent of a healthy child”, “the healthy
parent of the disabled child” and “the disabled parent of a healthy child” which is going to be explored in
this essay.4 Using an array of case law and journal articles conclusions can be drawn on the way the courts
are dealing with these issues – using the law or their own moral theories and opinions.
Public policy was a factor that was taken in consideration by the judge in Udale v Bloomsbury Area Health
Authority5 where sterilisation was performed negligently and public policy was against awarding damages
for the birth of a healthy child. This decision was overruled in Thake v Maurice6 where the court decided
that damages should be awarded for the pain and suffering of the pregnancy and the birth. But in Emeh v
Kensington and Chelsea and Westminster Area Health Authority 7, the court refused to give damages as
there was no rule in public policy which precluded recovery of damages for the physical discomfort
suffered by the claimant and for maintaining the child. After these cases the courts refused to allow public
policy to interfere with the ordinary negligence rules.8 This conclusion seems premature as the policy gates
1
Lord Neuberger, “Judge not, that ye be not judged’: judging judicial decision-making” (F A Mann Lecture, 2015)
<https://www.supremecourt.uk/docs/speech-150129.pdf>
2
Brenda Hale, “The Value of Life and the Cost of Living – Damages for Wrongful Birth” (2001), British Actuarial Journal,
750
3
N. Priaulx, “Letter from the UK: Tort Law and Damages for the Unwanted Child” (2007), Journal of Legal Economics, 55
4
L. Hoyano, “Misconceptions about Wrongful Conception” (2002), The Modern Law Review, 883
5
[1983] 2 All ER 522
6
[1986] QB 644
7
[1985] QB 1012
8
Raluca Rosu, “Unsolicited Parenthood as result of Negligence” (University of Westminster Law School, March 2014).
<https://www.academia.edu/6581158/_Wrongful_Conception_Unsolicited_Parenthood_as_Result_of_Negligence
2
