Wrongful birth and the politics of reproduction: West German and English law considered.

Abstract

This article considers the law relating to compensation in tort and contract for failed sterilizations and failed abortions leading to the birth of an unplanned but healthy child in the Federal Republic of Germany and England. It uses a policy-based analysis which takes the social construction of gender as a significant factor in judicial decision making. It criticizes existing literature for failing to take into account gender divisions in society and points to ways in which both the framework within which wrongful birth cases are discussed generally and the limitations which have been placed on recovery specifically reflect gender stereotyped notions of female and male behaviour and sexuality. I conclude that there are three main areas of concern in the wrongful birth cases: a) the inadequate recognition which the law accords to women's work in the home when awarding damages for maintenance of the unplanned child to majority; b) the awarding damages exercised by the politics of abortion, which can lead to undue restrictions on recovery; and c) the difficulties which the law experiences when attempting to conceptualize an interference in a woman's procreative autonomy in the same terms as an interference in a typically 'male' sphere of life, such as professional autonomy. Thus there is an urgent need to reconsider the categories of the law of obligations such as 'damage' and 'compensation', which are central to the principle of individual responsibility for harm caused, in order to reveal their gendered content and differential effects.