Tuesday 16 October 2018

€1.8m payment for mother who didn't get abortion after incorrect test result

Woman's child was born with debilitating genetic condition and needs 24-hour care

Stock photo
Stock photo

Tim Healy

A mother who is a carrier of a rare genetic condition - and who claimed she was deprived of her right to travel for an abortion - has settled the first ever wrongful birth case here for an interim payment of €1.8m.

The woman's child was born with the same disabling condition after a test on the foetus for that condition came back with a normal result.

The case is the first wrongful birth case based upon the right to travel to succeed at the High Court.

The mother had planned to exercise her constitutional right to travel to Britain for an abortion if the test had shown her unborn child had the same debilitating genetic condition, the High Court heard.

The child was born with the condition and needs 24-hour care. Because of the incorrect test, the mother claimed she was deprived of the ability to have an informed consent and to make an informed choice in respect of the continuance of her pregnancy.

Oonagh McCrann SC, for the mother, told the court that after the normal result came back on the test, the parents proceeded happily and joyfully with the pregnancy. They suffered enormous shock and grief when the baby was born and found to have the rare genetic condition with very significant and profound disability requiring 24-hour care.

Mr Justice Kevin Cross has ordered no detail can be published that 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 conceded by letter on June 13 last.

The letter stated that "in the particular circumstances of this case and in light of the outcome of the recent referendum repealing the Eighth Amendment to the Constitution", liability was conceded and the public policy defence was withdrawn.

Mr Justice Cross, noting liability had been conceded, said he accepted that but he would have thought the result of the referendum had nothing to do with it.

Ms McCrann said significant issues of law arose in the case and events outside the Four Courts had overtaken matters.

It was claimed the mother, as a carrier of a rare genetic condition, was concerned for her unborn baby and attended with a genetic counsellor at Our Lady's Hospital and a special test was arranged at the Rotunda Hospital.

It was claimed Our Lady's Hospital was expressly 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 mother was later informed by telephone the test results were normal when the result was abnormal.

She claimed her constitutional rights had been breached.

The family now has 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 as a result suffered significant psychological upset and distress, it was claimed.

Afterwards Malcomson Law, solicitors for the mother, said this was the first wrongful birth case based upon the right to travel to come before the Irish courts, while the application of a periodic payment order to such an event had not occurred in any jurisdiction worldwide. The family is relieved the legal battle had been resolved in favour of their child, the statement said.

Irish Independent

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