NRL News

‘Wrongful conception’ is a wrongful conception

by | Dec 8, 2021

A young woman has won a lawsuit on the basis that it would have been better if she had never been born.

By Michael Cook

 “It is curious that while good people go to great lengths to spare their children from suffering, few of them seem to notice that the one (and only) guaranteed way to prevent all the suffering of their children is not to bring those children into existence in the first place.”

This nihilistic nugget comes from one of my favorite contemporary philosophers, David Benatar, a South African who teaches at the University of Cape Town. It establishes a bookend to human life. There is a right to die at the end of our days and a right not to be born at the beginning.

Unlike Prof B, most people, most decent people, regard such cosmic pessimism as a kind of blasphemy against the kaleidoscopic beauty of human life.

However, the law in the United Kingdom appears to be siding with Prof B at the moment, in the wake of a case decided in the High Court last week, Evie Toombes v Dr M.

Judge Rosalind Coe ruled that a 20-year-old disabled woman who aspires to be a Paralympic showjumper has won the right to sue for millions in damages.  Her mother’s doctor failed to advise her to take folic acid supplements before Evie’s conception in 2001.

This was a case, the judge ruled, not of wrongful birth, nor of wrongful life, but of wrongful conception.

In plain language, Evie (not her parents) petitioned the court to declare that she would have been better off if she had never been born. And the judge agreed. 

Prof B would be delighted.

No legal judgment is so perverse or loopy that its arguments make no sense whatsoever. Let’s examine the assertion that it would have been better for Evie if she had never existed. If you think that disability makes life meaningless, this might be plausible.

Evie Toombes suffers from an irregularity in the development of the spinal column, lipomyelomeningocele. It is similar to but, importantly, not the same as spinal bifida. She needed major surgery as a baby and suffers from weakness and impaired mobility and has serious bladder and bowel problems. She requires feeding via a nasogastric tube. She explains her difficulties on her blog, Evie Toombes Para Rider. They are substantial, even though, frustratingly for her, they are not apparent. People often think that this beautiful young woman is “normal”.

On the other hand, Evie has also achieved more in her 20 years than many people have in their lifetime. She is a remarkable person whose motto is “Find A Way Not An Excuse!” Undaunted by her disability, she has become a champion para showjumper. And that is only one of her achievements; she has published a book, received a number of awards, and features as an inspirational speaker.

It is difficult to grasp why anyone could argue that it would have been better for Evie – and for the world — if she had never existed. Her brave struggle against the limitations of her disability is a triumphant affirmation of the value of her own life and the lives of other disabled people.

Here is the legal angle.

Evie’s parents have been seeking compensation for their daughter’s disability for years. Under English law they cannot use a “wrongful life” argument. And her disability was not caused by anything her mother’s doctor did or advised.

So her lawyers came up with a novel argument.

Although there was some dispute about the facts, which rested on the credibility of the mother and the doctor, the judge declared that the following had happened. In 2001 Evie’s parents wanted to conceive a child. Her mother stopped taking oral contraception and sought pre-conception advice from her family doctor, Philip Mitchell. 

Dr Mitchell failed to tell her to start taking folic acid supplements to ward off the possibility of spinal bifida. (He denied this.) Had she received that advice, she would have delayed trying to conceive a child.

This case was widely reported in the media, but the journalists all missed the key point.

Because Evie’s condition resembles spinal bifida, the media assumed that it was due to a lack of folic acid during the pregnancy. That is not the case. Lipomyelomeningocele is a different condition. As the London Neurosurgery Partnership states on its website: “[Its] cause is unknown, however, is it known that it is not related to genetics or lack of folic acid during pregnancy.” There is no dispute about this in the medical literature.

Much of Judge Coe’s 17-page judgment is devoted to matters relating to the importance of folic acid supplements, but this is completely irrelevant. Evie’s lawyers reviewed the case on their blog and declared, misleadingly, that she “was born with spina bifida”. This is false and it is also false to declare that if Mrs. Toombes had taken the folic acid supplement earlier, Evie would have been born without a disability.

The judge’s ruling was not that the doctor had given bad advice but that he altered the timing of the conception. She wrote:

Had she [Mrs. Toombes] been provided with the correct recommended advice she would have delayed attempts to conceive. In the circumstances, there would have been a later conception which would have resulted in a normal healthy child. I therefore find that the claimant’s claim succeeds on liability.

The judge’s ruling would have worked for any disability whatsoever, not just something that resembled spinal bifida – Down syndrome, cleft palate or blindness. The point is that Evie’s mother would have delayed the couple’s attempt to conceive if she had received the proper advice. When she succeeded, she would have had a different child, a normal child, a child not marred by a birth defect. She would not have given birth to Evie, whose life is so worthless (in the eyes of the law) that it would have been better if she never existed.

Evie and her parents deserve our sympathy. Her lifetime care will be expensive and a big pay-out from an insurance company will no doubt be well spent.

I can’t say the same for the judge. Her decision is inhumane; it potentially creates a class of people whose lives are worthless.

Doctors will be terrified – from now on they can be sued over birth defects in children born decades ago.

But worse, this is a body blow to the sanctity-of-life embedded in the law of many countries, not just the UK. The judge has found that it would have been better if Evie Toombes had never been born. Who deserves to have this said of them? Adolf Hitler, perhaps? Mao Tse-tung? Jeffrey Dahmer? Pol Pot?

But surely not the vibrant, courageous young woman named Evie Toombes.

Editors’ note. This appeared at Mercatornet and is reposted with permission.

Categories: Judicial