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Feminist Legal Studies (2019) 27:33–55
https://doi.org/10.1007/s10691-018-9390-3
1 3
Gender Injustice inCompensating Injury toAutonomy
inEnglish andSingaporean Negligence Law
TsachiKeren‑Paz1
Published online: 22 November 2018
© The Author(s) 2018
Abstract
The extent to which English law remedies injury to autonomy (ITA) as a stand-alone
actionable damage in negligence is disputed. In this article I argue that the remedy
available is not only partial and inconsistent (Keren-Paz in Med Law Rev, 2018) but
also gendered and discriminatory against women. I first situate the argument within
the broader feminist critique of tort law as failing to appropriately remedy gendered
harms, and of law more broadly as undervaluing women’s interest in reproductive
autonomy. I then show by reference to English remedies law’s first principles how
imposed motherhood cases—Rees v Darlington and its predecessor McFarlane v
Tayside Health Board—result in gender injustice when compared with other auton-
omy cases such as Chester v Afshar and Yearworth v North Bristol NHS Trust: A
minor gender-neutral ITA is better remedied than the significant gendered harm of
imposing motherhood on the claimant; men’s reproductive autonomy is protected to
a greater extent than women’s; women’s reproductive autonomy is protected by an
exceptional, derisory award. Worst of all, courts refuse to recognise imposed moth-
erhood as detriment; and the deemed, mansplained, nonpecuniary joys of mother-
hood are used to offset pecuniary upkeep costs, forcing the claimant into a position
she sought to avoid and thus further undermining her autonomy. The recent Singa-
porean case ACB v Thomson Medical Pte Ltd, awarding compensation for under-
mining the claimant’s genetic affinity in an IVF wrong-sperm-mix-up demonstrates
some improvement in comparison to English law, and some shared gender injustices
in the context of reproductive autonomy. ACB’s analysis is oblivious to the nature of
reproductive autonomy harm as gendered; and prioritises the father’s interest in hav-
ing genetic affinity with the baby over a woman’s interest in not having motherhood
imposed upon her.
Keywords Negligence· Actionable damage· Autonomy· Wrongful conception·
Tort· Gender-based harm· Equality· Damages· Mansplaining
* Tsachi Keren-Paz
t.keren-paz@sheffield.ac.uk
1 University ofSheffield, Sheffield, UK
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T.Keren-Paz
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Introduction
Reproductive autonomy cases, especially wrongful conception, can be analysed
through two analytical prisms. One is the feminist critique of reproductive law and
family law (including access to abortion and constructions of motherhood) (e.g.
West 1988, 1997; Bordo 2003; Siegel 2007; Cornell 1995; Priaulx 2007; Shel-
don 2016; Sanger 2018) and of tort law, in particular, the inadequate remedying
of gender-based harms (e.g. Chamallas 1998; Bitton 2010). A more specific litera-
ture criticises wrongful conception cases from a feminist perspective (e.g. Morris
2004; Priaulx 2007). The other and less obvious prism is a growing conversation on
whether negligence law ought to and does compensate for undermining one’s auton-
omy as a stand-alone head of damages (e.g. Nolan 2007; Clark and Nolan 2014;
Purshouse 2015, 2017; Keren-Paz 2017, 2018).
The extent to which English law (and more generally the common law world)
compensates injury to autonomy (ITA) as a stand-alone actionable damage in the
tort of negligence is disputed. My interpretation of the relevant cases—Rees v Dar-
lington Memorial Hospital NHS Trust,1 Chester v Afshar2—, Tracey v Cambridge
University Hospitals NHS Foundation Trust,3 Shaw v Kovac,4 Yearworth v North
Bristol NHS Trust5 and Bhamra v Dubb6—is that English law does recognise injury
to autonomy as actionable; however, it does so inconsistently. A look at the six most
relevant appellate cases reveals that that they can be grouped into three categories:
reproductive autonomy cases: Rees and Yearworth7; informed consent cases: Ches-
ter, Tracey and Shaw; and food consumption: Bhamra.
In this article, I would like to focus on the reproductive autonomy cases and argue
that new insights could be gleaned by marrying the two analytical prisms—feminist
critique of reproductive autonomy law and actionability of ITA—together. The anal-
ysis of Rees, and of its predecessor McFarlane v Tayside Health Board Appellants8
reveals that not only the protection afforded in Rees to reproductive autonomy is
inconsistent with recognition (or its absence) of ITA as actionable damage in other
English cases (Keren-Paz 2018; cf. Keren-Paz 2007a, 2017) but that the holding
undermines gender justice, is androcentric and is potentially discriminatory.
1 [2003] UKHL 52.
2 [2004] UKHL 41.
3 [2014] EWCA Civ 822.
4 [2017] EWCA Civ 1028.
5 [2009] EWCA Civ 37.
6 [2010] EWCA Civ 13.
7 The most important British reproductive tort case, dealing with wrongful conception, is McFarlane v
Tayside Health Board Appellants [2000] 2 AC 59 in which the upkeep costs of an unplanned daughter,
fifth in the family, born due to negligent vasectomy, were denied and remedy was limited to the imme-
diate costs (including pain and suffering) of the pregnancy and labour. Since a separate award for the
undermining of reproductive autonomy was neither asked for nor awarded, I do not include McFarlane in
the group of cases discussing ITA as actionable damage in negligence. But of course, it is indispensable
as a reproductive tort case.
8 Ibid.
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Gender Injustice inCompensating Injury toAutonomy inEnglish…
A general look at autonomy cases reveals that the most inadequate protection of
ITAs relates to the category of reproductive choice, and more precisely, to wrong-
ful conception. What accounts for this, beyond conceptual under-theorisation, is a
normative difficulty: obliviousness to the nature of reproductive autonomy as a gen-
dered harm. If this thesis is correct, the inadequate protection given to reproduc-
tive autonomy under Rees is the combination of both autonomy being a devalued
protected interest (unorthodox, contested) and a devalued right-bearer—a fertile
woman. This is emblematic of law’s failure to adequately respond to women’s expe-
riences. I defend this view despite the fact that the only undisputed English case
explicitly compensating ITA as actionable was in the context of failed sterilisation.9
As the discussion will reveal, Chester, Rees and Yearworth are problematic when
looked upon in isolation and compared to each other. The protection afforded to ITA
in these cases is patchy, inconsistent and under-theorised; the problems are both
across categories of case law (mainly Chester and Rees) and within (mainly Rees
and Yearworth). The conceptual deficiency, elaborated upon in Keren-Paz (2007a,
2017), lies in glossing over the crucial distinction between the three types of ITA:
Type 1, being deprived merely of the opportunity to consent to being moved from
one state of affairs to another (Chester and Tracey); Type 2, a more serious injury
of being moved without consent to a subjectively inferior state of affairs (Rees,
Yearworth and Bhamra); and Type 3, autonomy loss consequent upon violation of
a previously protected interest (Shaw). This under-theorisation leads to inconsistent
levels of protection both across and within categories and to an inverse hierarchy,
according to which, more serious violations of ITA lead to lower damages awards
and vice versa. Most troubling, perhaps, is the award of type 3 hefty damages (for
the physical injury from the materialisation of the risk, deemed wrongly as a conse-
quence of the interference with the claimant’s autonomy) for type 1 (gender-neutral)
ITA in Chester (depriving Chester of the opportunity to consent to submitting to
treatment with its inherent risk, in circumstances she would have consented, had she
been sufficiently informed), while at the same time awarding in Rees de facto type 1
damages (a flat conventional award reflecting the loss of notional control over repro-
ductive autonomy) for very significant gendered ITA type 2 (the interference with
the claimant’s life plan from having an unplanned child) and type 3 (economic costs
of raising an unplanned child which are a consequence of undermining the claim-
ant’s reproductive choice). This illustrates the shortcomings involved in the absence
of joined-up thinking about the damage concept in law (in particular, negligence)
and the casuistic stumbling from case to case, which is typical of wrongful concep-
tion cases (see Cane 2004; Priaulx 2017; McCandless 2017, 36).
Under-theorisation of ITA as actionable damage and gender injustice in reproduc-
tive autonomy cases is not unique to English law.10 I will demonstrate this with ref-
erence to the recent Singaporean Court of Appeal decision of ACB v Thomson Medi-
cal Pte Ltd11 in which loss of genetic affinity was recognised as actionable damage
9 See Keren-Paz (2018), for analysis of the six cases.
10 See Keren-Paz (2007a) for a critique of similar inconsistencies in early Israeli ITA jurisprudence.
11 [2017] SGCA 20.
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T.Keren-Paz
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in a wrongful fertilisation case (which, I, and others (Fox 2017), see as a category
of reproductive autonomy).12 The article concludes that while in certain aspects the
decision is an improvement on Rees and McFarlane, ACB is marred as well by con-
ceptual inconsistencies and obliviousness to the gendered nature of reproductive
autonomy.
Autonomy, Gender Justice andGendered Harms
Before delving into the analysis, a few related preliminary comments are in order:
firstly, about the meaning of autonomy; secondly, the normative desirability of rem-
edying ITA and thirdly, the meaning of gender justice and gendered harms. The
starting point for my analysis is the understanding of personal autonomy as self-
authorship. This account, most forcefully developed by Joseph Raz, (and others e.g.
Lindley 1986), is normatively attractive and influential in case law13 and legal schol-
arship (see e.g. Clark and Nolan 2014; Dagan 2013). According to Raz, ‘the ideal of
autonomy is that people should make their own lives’ and the ‘autonomous person
is a (part) author of his own life… the vision of people controlling, to some degree,
their own destiny, fashioning it through successive decisions throughout their lives’
(1988, 155–156).
The standard, liberal account of autonomy, at least as applied to tort law, focuses
on the ability to make choices simpliciter (see e.g. Cane 1997, 234; cf. Dan-
Cohen 2002, 125). However, it is debated whether the ideal of self-authorship can
be invoked to trigger a private law remedy for any setback to one’s choices and
desires. To use the terminology of feminist philosopher Diana Meyers, it is unclear
whether we ought to remedy violations of episodic autonomy, as opposed to pro-
grammatic autonomy (1987, 624–625).14 Arguably, Raz’s own conception of auton-
omy as self-authorship could be understood as programmatic rather than episodic
(choice-centred). Remedying ITAs that undermine deeply held values—in which
the choices undermined are positioned on the continuum somewhere between epi-
sodic autonomy, reflecting ‘thoughtless desire’ (Frankfurt 1971), and programmatic
14 A person is programmatically autonomous when she is carrying out a life plan (how do I want to live
my life?) that embodies her own answers to a particular type of question (what kind of work do I want
to do; do I want children? etc.). In contrast, episodic autonomy entails being able to ask ‘what do I really
want to do now?’ in a given situation.
12 While I have written on reproductive autonomy in the past—in the context of women’s duty of care to
their born alive child for prenatal injuries (Keren-Paz 2005, 2007b), the genealogy of this paper has to do
with my interest in ITA as actionable in negligence. As such, ACB’s overt discussion of whether the harm
has to be compensated as an ITA made it appropriate to examine ACB against the line of cases of ITA as
actionable damage and (as does Fox (2017)) wrongful conception. Having said this, ACB could be exam-
ined against another line of cases dealing with mistakes relating to gametes. Some of the similarities and
differences between these categories of cases are examined in the last part of the paper, but I leave a full
discussion of these issues for another day, including what interests, other than autonomy, are implicated
by confounded procreation cases.
13 Coleman v Attridge Law (A Firm) (C-303/06) [2008] All ER (EC) 1105 [9]; CA 10064/02 Migdal v
Abu Hannah, PD 60(3) 13 (Supreme Court, ISr, 2005) [33].
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Gender Injustice inCompensating Injury toAutonomy inEnglish…
autonomy—protects the core of self-governance,15 so that ‘people can freely make
up their own minds about what to believe and how to live, and can then act accord-
ingly’ (Voorhoeuve 2009). Similarly, if the effects of the thwarted choice are sig-
nificant or lasting, they are more likely to affect programmatic, rather than episodic,
autonomy.
The liberal notion of autonomy has been criticised from communitarian, femi-
nist and critical quarters as ontologically and normatively deficient (e.g. MacIntyre
1984; Hoagland 1988; Althusser 1976, 205; O’Shea 2012; West 1988; Bordo 2003;
and in the context of wrongful conception, Priaulx 2007). Alternative understand-
ings of ‘relational’ and ‘embodied’ autonomy have thus been offered (Christman
2004; Oshana 2006; Cowan 2007). At first glance, such a critique might query the
desirability of remedying ITA in negligence—perhaps especially from a feminist
perspective—and raises the question of the threshold for injuries that ought to be
compensated. I have recently normatively defended remedying ITA in negligence
and would not repeat the argument here. A remedy for type 2 ITA is justified if the
choice that was undermined was based on deeply held views or pertained to core
issues with respect to which self-authorship is especially important. Since a consti-
tutive element of type 2 ITA is the undermining of the claimant’s reliance interest,
a remedy in negligence (and not only in contract) is called for. Where the choice
undermined pertains to a sufficiently important interest, such as determining what
treatment to receive, even type 1 injuries ought to be compensated (Keren-Paz
(2017)).
Currently, I would make four points. First, even in feminist and critical quarters,
the implications of the critique of the liberal conception of autonomy for consent
and choice are unclear (Hunter and Cowan 2007; Nedelsky 1989; West 1988). In
particular, the notion of embodied autonomy developed mainly in the critique of
rape law (e.g. Cowan (2007)) seems to be quite apt in wrongful conception cases,
which are a major category of reproductive autonomy cases. Put differently, whether
one adopts a classic, thin, liberal conception of choice, or a thicker one, protecting
significant choices, the pattern of decisions analysed below remains inconsistent and
hard to justify. The thicker notion, which I support, is identical or very similar to
relational or embodied concepts of autonomy. Bordo (2003, 94), for example, calls
to shift the feminist reproductive rights discourse ‘from abstract rhetoric of choice’
to ‘insisting that women’s equal protection’ requires resolving ‘contradictions…
regarding’ the extent of protecting ‘bodily integrity’ and ‘reclaiming… pregnancy
and abortion as experientially profound events’.
Second, the thicker notion of autonomy I adopt—protecting choices that are
informed by one’s personal beliefs, ethics, values, attitudes and world view, or which
have a significant bearing on the way one leads one’s life—is immune to much of
the critique uttered against the narrow liberal conception and is likely to assuage
fears about the negative practical and expressive ramifications of compensating indi-
viduals in negligence for thwarted choices. Put differently, even if compensating
Bhamra-like cases (unwittingly consuming food, undermining one’s ethical beliefs
15 See Chico (2011, 66), based on the influential accounts of Gerald Dworkin and Harry Frankfurt.
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38
T.Keren-Paz
1 3
or in contrast to one’s religion) is contested, compensating a woman for negligently
imposing motherhood upon her ought not be. The point will become clearer in the
following discussion of gender justice and gender harms. For now, I will only note
that Raz’s account of autonomy as authorship, which underlies my account of rem-
edying ITA, seems to be endorsed by Reva Siegel (2007, 816) and Carol Sanger
(2018, 37) in their call to further women’s reproductive autonomy. Thus Siegal cites
approvingly the unmistakably Razian formulation adopted in Planned Parenthood of
Se. Pa. v. Casey16 as the basis to critique states’ intervention in women’s reproduc-
tive autonomy as undermining women’s equality: ‘The destiny of the woman must
be shaped to a large extent on her own conception of her spiritual imperatives and
her place in society.’ Sanger too acknowledges that control over reproductive plans
is connected ‘to the idea of autonomy, in the sense of vindicating a person’s self-
authorship of his of her life’ citing Raz, and that ‘this idea is already vindicated
in the abortion jurisprudence’. It is true that Sanger entertains doubts on whether
control is the useful framework for reproductive torts as part of her critique of Dov
Fox’s framing of the issue (2017). However, I read her claim that the gist of the
harm in reproductive torts (pace Fox) ‘is not the loss of control over planning but
rather, the loss of what the plan meant to produce’ as entirely compatible with the
two claims I make in this article. First is the analytical distinction between type 1
injury (being deprived merely of the opportunity to consent to being moved from
one state of affairs to another) and type 2 injury (involving a consequential loss from
being moved without consent to a subjectively inferior state of affairs). Second is
the normative claim that given the far-reaching consequences of interferences with
reproductive autonomy, such interferences should be remedied by much higher dam-
ages than those given for gender neutral type 1 injury (as in Chester). Sanger also
seems to endorse the autonomy framework as ‘perhaps running in parallel’ to focus-
ing on remedying the emotional harms of disappointed expectations in the reproduc-
tive context and on recognising pregnancy itself as an injury.
Likewise, my endorsement of a thick conception of choice, and the importance
of protecting it, while being critical of the thin impoverished notion of choice, is
aligned with Priaulx’s (2007) analysis of wrongful conception. Indeed, as I have
explained in my review of her book ‘Insisting that women suing for wrongful con-
ception still have choice, albeit a difficult one, while clarifying that the defendant’s
liability should be grounded in the fact that it subjected the woman to such a difficult
choice—by reducing the range of options open to the claimant—is, to me, Priaulx’s
most significant contribution in the book.’ (Keren-Paz 2008).
Third, especially since courts’ liberal commitment is with us to stay, we should
develop the jurisprudence in a way that is not androcentric and discriminatory
(Keren-Paz 2013, 145). Finally, even on its own terms of a liberal, thin conception
of choice, the pattern of decisions does not make sense (although the decision to
view ITA as actionable negligence does), a point I develop at the end of the next
section while explaining the inconsistency between Rees on the one hand, and Ches-
ter or Yearworth on the other.
16 505 U.S. 833, 852 (1992).
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Gender Injustice inCompensating Injury toAutonomy inEnglish…
Reproductive torts invoke autonomy in the contexts of gendered harms and gen-
der justice. Gendered harms are suffered either uniquely or disproportionately by
one gender, and the extent to which gendered harms are adequately addressed by
law (including tort law, which focuses on redressing wrongful harms) is a major
part of any gender-justice inquiry. In the context of tort law, gender injustice might
result from application of seemingly equal rules to facially non-gendered harms by
ignoring background conditions which disadvantage women. An example would
be rules of compensating lost earnings for personal injury which perpetuate and at
times exacerbate women’s reduced income in the labour market (see Chamallas and
Wriggins 2010). Alternatively, as in the case of reproductive torts or sexual abuse,
gendered harms typically suffered by women are devalued (in different areas of the
law including tort, criminal, family and constitutional law) in ways which are either
outright discriminatory or otherwise problematic, by failing to take on board wom-
en’s interests, morality and epistemology.17
The analysis of wrongful conception (and more broadly reproductive autonomy/
torts) offered here chimes with the following: (1) Realisation that the stakes of deny-
ing reproductive choices, especially for women, are enormous.18 This translates to
criticising the very limited remedy offered in Rees and to the inconsistent level of
protection in comparison to Chester. (2) The harm in reproductive torts is mainly
non-material and involves the undermining of decisional autonomy and its far-reach-
ing consequences, including, in particular, women’s personhood, subjectivity and
citizenship.19 As such, redress is called for not only as a matter of autonomy but also
of well-being (Fox (2017, 177); Sanger (2018, 36)). This translates to the need to
recognise autonomy (at the very least reproductive autonomy) as actionable in neg-
ligence and the importance of distinguishing between types 1, 2, and 3 ITA. Indeed,
Sanger’s critique of Fox’s conceptualisation of the harm20 becomes more intelligible
once the distinction between the mere undermining of decisional autonomy in type
2 cases and its consequences is well understood (Keren-Paz 2017, 420–421).21 (3)
17 See in the contexts of: sexual harassment Bernstein (1997); image-based abuse McGlynn and Rackley
(2017); reproductive autonomy West (1988, 1997); Bordo (2003); Priaulx (2007); Sanger (2018, 39–45)
who notes (at 40) that ‘the measure of disappointment’ from ‘losing control over reproductive plans’ ‘is
not gender neutral’.
18 See West (1988, 30–32, 41 (being ‘overtaken, occupied, displaced and invaded’, 47 (compulsory
motherhood as ‘tremendously constraining, damaging and oppressive’); Bordo (2003, 93) (constraining
women reproductive choices challenges ‘women’s status as subjects’); Siegel (2007, 819) (highlight-
ing ‘both practical and dignitary significance to the decisional control that reproductive rights afford
women’); Priaulx (2007).
19 Siegel (2007); Bordo (2003, 77 (women as fetal containers, see also Annas (1986)), 85, 93 (threat to
women’s subjectivity); West (1988, 1997, 107); Sanger (2018); Priaulx (2007).
20 Sanger (2018, 36) who describes Fox’s conceptualisation as focusing on ‘disruption to an individual’s
procreative plans’ as opposed to Sanger’s suggestion that it ‘is not the loss of control over planning but
rather, the loss of what the plan meant to produce’ that matters. I think that Sanger misreads Fox, in this
regard, as he is very clear throughout, that the harm in such cases is much about the consequences (and
hence implicates women’s well-being), a point which is also reflected in his sketch of damages quantifi-
cation.
21 See also Keren-Paz (2018, 418) for the similar distinction between simultaneously suffering ITAs 2
and 3.
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T.Keren-Paz
1 3
Reproductive autonomy is a matter of sex equality (equal protection in US consti-
tutional terminology) and not only of liberty or privacy (Bordo 2003; Siegel 2007;
Cornell 1995). Hence, the focus on the discriminatory aspects of the limited protec-
tion reproductive autonomy received in Rees and in ACB and on viewing cases of
imposed procreation (to use Fox’s terminology), such as Rees, as deserving stronger
remedy than confounded procreation, such as ACB.
Five Aspects ofGender Injustice inEnglish Wrongful Conception
Cases
Reproductive autonomy is gendered; negligent undermining of reproductive auton-
omy is a gender-based harm disproportionately harming women. This feature,
beyond the conceptual under-theorisation discussed above, helps explain why the
protection of autonomy in English negligence law is unsatisfactory. This reading of
Rees focuses, therefore, on its nature as a reproductive autonomy case, while the
analysis in Keren-Paz (2018) highlighted its nature as an autonomy case. If this the-
sis is correct, the flimsy protection given to reproductive autonomy under Rees is the
combination of both autonomy being a devalued protected interest/actionable dam-
age (unorthodox, contested) and a devalued right-bearer—a fertile woman.
In Rees, the claimant wished not to have children (mainly due to the fact that
she had a genetic condition that rendered her practically blind). She underwent a
sterilisation operation, which was conducted negligently, so unbeknown to her had
failed. She eventually became pregnant and gave birth to a son. The House of Lords
awarded £15,000 as a conventional award to compensate the claimant for her loss of
reproductive autonomy not to become a parent.
Rees results in gender injustice. The first and most troubling aspect of gender
injustice in wrongful conception cases is courts’ refusal to legally acknowledge that
unwanted motherhood is a ‘detriment’. The original sin lies with McFarlane, not
Rees, although as evident from reading McFarlane, its reasoning reflects commonly
held views among judges across many jurisdictions. Such a view is based on ‘what
is morally acceptable and what is not’ lest:
parents may be put in a position of arguing in court that the unwanted child,
which they accepted and care for, is more trouble than it is worth … the law of
tort has no business to provide legal remedies consequent upon the birth of a
healthy child, which all of us regard as a valuable and good thing.22
The ‘law must take the birth of a normal, healthy baby to be a blessing, not a
detriment.’ While individuals ‘may choose to regard the balance as unfavourable …
society itself must regard the balance as beneficial’.23
This normative stance forces parental obligations (which are clearly gendered) on
the mother—epitomising Robin West’s broader observation that ‘[M]ost women are
22 Supra n 7 at 82 (Steyn).
23 Ibid at 114 (Millett).
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Gender Injustice inCompensating Injury toAutonomy inEnglish…
indeed forced into motherhood’ (1988, 71)—and is, therefore, at odds with socio-
logical, psychological and political science findings about the costs of motherhood
(let alone of an involuntary one). Ruth Cain (2007) highlighted both the difficulties
embedded in motherhood in different social contexts and the opprobrium faced by
mothers who dare to complain about mothering. Orna Donath’s study (2015) amply
documents the biggest taboo of all: ‘regretting motherhood’; the study critically exam-
ines the cultural narration of adapting to motherhood, of which McFarlane’s rhetoric
is a good example. Data also exists on the specific costs of unwanted motherhood;
compared with having an abortion, being denied one may be associated with a greater
risk of initially experiencing adverse psychological outcomes (Biggs etal. 2017).
McFarlane’s endorsement of forcing parental obligations on the mother is incom-
patible with the normative disapprobation—in both philosophy and law, and espe-
cially at common law—of positive duties. It barely needs mentioning that in negli-
gence law itself, there is no duty to rescue, and denying the mother recourse against
the negligent defendant in wrongful conception cases amounts to the imposition of
such a duty. This argument is well developed in the context of the right to abortion
(see Thompson 1971; Bernstein 2016, 2018), but is equally valid as a reason to sup-
port a duty of care in wrongful conception cases.
The second aspect of gender injustice (but perhaps also of the flawed conceptu-
alisation of ITA) is the denial of upkeep costs on the grounds that the parents bear
the joys of parenthood so cannot expect the defendant to bear the financial costs.
This argument was presented in McFarlane as a matter of fairness24 and in other
jurisdictions (notably, but not only, in the USA) as a matter of offsetting benefits.25
In conceptualising ITA we need to distinguish ‘between loss of autonomy result-
ing from any duty to pay for the unsolicited benefit, and loss flowing from the fact
that the claimant’s actions in conferring what the market might regard as a “benefit”
have put the defendant in a position that is subjectively inferior to his pre-interfer-
ence condition’ (Keren-Paz 2017, 423). The general rule within restitution law is
that unsolicited benefits which were not freely accepted do not give rise to a duty to
make restitution.26 For this reason, when the tortious act also conferred a benefit on
the claimant, offsetting the benefit is not automatic and straightforward. If a set-off
is allowed, the claimant is subject to the defendant’s power to force on the claimant
a transaction in which the improvement to one interest is financed by the diminish-
ment of another interest. In order to prevent this danger, one of the conditions in
§920 of the Restatement (Second) of Torts for allowing set-off is that the benefit is
to the same interest undermined by the breach of duty. Only when this is the case
does the offsetting not involve a forced transaction on the claimant. Pace Lord Mil-
lett in McFarlane, who commented that the claimants could not be allowed ‘by a
24 McFarlane supra n 7 [97] (Lord Hope) (and cf [105] (Lord Clyde), [113] (Lord Millett)).
25 See e.g. Custodio v Bauer, 59 Cal Rptr 463 (1967).
26 Benedetti v Sawiris [2013] UKSC 50 [18] with explicit reference to ‘the fundamental need to protect
a defendant’s autonomy’. As discussed in the next section, even those denying remedy for wrongful con-
ception largely recognise that accepting an unwanted child is not free, given the moral, sociological and
psychological costs of abortion or adoption.
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42
T.Keren-Paz
1 3
process of subjective devaluation, to make a detriment out of a benefit’,27 the refusal
to allow subjective devaluation in wrongful conception cases seems unprincipled
and possibly discriminatory.28
Denying a claim based on the parent’s accepting the child into the family is also
incompatible with the modern near impossibility to establish the volenti defence in
negligence and with the requirement that the claimant will consent to the risk of not
being compensated, rather than to the risk of injury.29 By analogy, accepting paren-
tal obligations towards the unplanned child does not mean waiving the claim against
the defendant.
The third and related aspect of gender injustice in wrongful conception cases is
the use of distributive justice considerations—of fairness (Keating 2000) and equal-
ity (Keren-Paz 2007b)—to justify the denial of the claimants’ costs of raising an
unplanned child.30 This ignores the obvious relevance of distributive justice, here
gender justice, to adequately compensate for loss of reproductive autonomy, which
is a gendered harm. As feminist thinkers have demonstrated, and was summarised
above, this is symptomatic of law’s broader failure to understand what is at stake in
denying women reproductive autonomy and, even more broadly, to take women’s
experiences, morality and epistemology into account. The autonomy loss is likely to
be much less wealth dependent than the costs of raising a child and for this reason
too, compensating it is normatively desirable.
The one qualification to this statement is that the mother’s career loss from having
the unplanned child might have a socio-demographic gradient. Women in well-paid
jobs might feel that the setback to their career is more significant. But here, too, care
should be taken to distinguish between the pecuniary and non-pecuniary aspects of
the career setback. The long-term reduction in earnings due to care responsibilities
is unrecoverable, according to Greenfield v Irwin.31 But the fact that the claimant’s
career was interfered with and, as a consequence, she is less able to feel fulfilment
and satisfaction, are exactly part of what an award for type 2 autonomy loss is meant
to compensate. As long as restitutio in integrum is the controlling remedial principle
in private law, notwithstanding its built-in regressive effects (Abel (1990)), it will
be most untoward to deny compensation for autonomy loss that is distinctively gen-
dered in order to avoid disproportionate compensation of the better-off (cf. Keren-
Paz (2007b, 149, 175); Keren-Paz (2013, 145)).
27 Supra n 7 at 112.
28 It is beyond the scope of this article to provide a comprehensive examination of the extent to which
restitution law’s autonomy preserving principles of free acceptance and incontrovertible benefit are or
ought to be adopted for purposes of setting off benefits against the harms in torts damages. It suffices to
say, that, as indicated in the text, the Restatement’s doctrinal requirement of ‘same interest’ as a condition
for such set-off advances the same value enshrined by the free acceptance requirement.
29 Nettleship v Weston [1971] 2 QB 691.
30 McFarlane supra n 7 [83] (Lord Steyn), [91] (Lord Hope) (regressive result argument); see supra,
n 24 (fairness argument). To be sure, there is similarity between the fairness argument and the ‘moral
repugnancy’ argument discussed above—that parental obligations cannot normatively be considered as
a loss. But I believe that the arguments are different, so even if upkeep costs could be considered as loss,
there might still be policy reasons against compensating claimants for that loss.
31 [2001] 1 WLR 1279.
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Compensating autonomy loss is still subject to the same fairness argument
mounted against compensating upkeep costs. Since the parents bear the joys of par-
enthood they should bear the autonomy loss.32 But, of course, the set-off argument
itself is oblivious to the value of autonomy. It is not for the defendant to force an
unwilling claimant to become a parent and set off from the autonomy loss created
by its negligence the joys of parenthood, which the claimant explicitly sought to
avoid.33
Finally, note also the ironic reversal of the fairness claim in McFarlane—that it
is unfair that the parents who enjoy the child will not bear the costs of its upbring-
ing.34 Denying the right to damages from wrongful conception claimants based on
the social value of the family unit,35 amounts to a form of taking, or expropriation
without adequate compensation, and is, therefore, problematic on fairness grounds.
The reluctant parents are required to discharge obligations they sought to avoid and
are denied compensation due to a belief that such compensation will undermine a
socially valuable institution.
In theory, an award for undermining the parents’ reproductive autonomy could be
given in addition to upkeep costs.36 Having an unplanned child creates both pecuni-
ary and non-pecuniary costs and, as we have seen, the policy considerations for and
against awarding them are quite different. Pecuniary costs have a wealth gradient
(rich parents are likely to recover more) and are largely not gendered37; non-pecuni-
ary costs, i.e. autonomy loss, have the reverse pattern.
Historically, the conventional award was probably developed as a ‘consolation
prize’ given the refusal to award child-rearing costs. The Law Lords might have
felt that sending the claimant away empty-handed was inappropriate. It should also
be recalled that the claimants did not plead compensation for their autonomy loss
(which is unsurprising given the fact that this interest was not traditionally protected
by the tort of negligence). But now that the interest has been recognised (Nolan
2007, 73–77), and even more, (as discussed below) given the award of type 3 dam-
ages to type 1 injury in Chester, it is time to protect the interest in reproductive
autonomy in a more principled and comprehensive manner.
A fourth aspect of gender injustice is manifested in Lord Millett’s insistence that
the award be given in equal share to both parents.38 This is odd. While unplanned
parenthood significantly undermines the father’s autonomy, it typically undermines
much more the mother’s for the following reasons: childcare is still overwhelmingly
38 Rees supra n 1 [124].
32 Supra n 24.
33 See text to supra n 26.
34 See supra n 24.
35 See especially Lord Millett’s view cited in supra n 23; cf. references in ACB supra n 11 [92] to the
family being ‘the basic unit of society’.
36 This would be the equivalent of awarding type 2 and type 3 damages cumulatively, a debated possibil-
ity in Israeli case law. See Keren-Paz (2018), n 108.
37 However, since there are more women than men in single-parent families the pecuniary loss is some-
what gendered. Indeed, there is much to be said for allowing child-rearing costs in cases where the
patient is a single parent, who is typically on quite a low income (cf. Amirthalingam 2018, 17).
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T.Keren-Paz
1 3
performed by women (Graycar and Morgan 2002, 267; Schober 2010, 13–22); social
construction of parents’ roles is gendered (Sanchez and Thomson 1997, 748–749;
Bass 2015, 364–365); the relative importance associated with one’s role as a par-
ent vis-à-vis other social roles is likewise gendered (Thompson and Walker 1989,
864; Nilsen etal. 2013, 134–135). In a sense, Millett’s obliviousness to all this is
just another manifestation of the problem, which is discussed immediately below,
of compensating type 2 injuries by means of a conventional award. After all, the
interference with reproductive autonomy is likely to cause different quanta of losses
to different women. However, in theory, one could come up with two gendered con-
ventional awards with different sums, reflecting the unequal distribution of childcare
responsibilities with their corresponding effect on autonomy (cf. West 1988, 31;
Priaulx 2007; Sanger 2018, 40). So, the problems are, in fact, separable.
The fifth aspect of gender injustice is the deviation from the principle of full
compensation and the setting of a very low amount for the conventional award. This
is problematic both in itself and compared to Chester and Yearworth.
Chester andRees: Wrongly De‑prioritising Type 2, Gendered, Injury
In Chester, Afshar negligently failed to warn Chester of a small inherent risk in the
procedure she undertook and the risk materialised. There was no negligence in the
way the procedure was undertaken and, had Chester been warned, she would have
delayed her consent but eventually would have undergone the procedure. Despite
the fact that the breach of duty—the failure to inform Chester of the risk—did not
increase the chance that the injury would materialise, Chester was fully compensated
for the consequent physical injury in order to vindicate her interest in autonomy.39
Taken together, the holding in Rees and Chester raises three problems.40 First, a
conventional award in Rees is a deviation from the principle of full compensation
and, as such, is inconsistent both with Chester and with the rest of English remedies
law. Leaving aside this inconsistency, one might still doubt whether the award to all
mothers in wrongful conception cases should be standardised, ignoring important
differences between them. For one thing, the motivation for not wishing to have a
child might have a bearing on the significance of the intrusion (cf. Fox 2017; Pur-
shouse 2017). For example, thwarting a financially motivated decision seems less
intrusive than thwarting a motivation to avoid the burden of raising children.41 And
of course, individual circumstances will influence the ‘opportunity cost’ of hav-
ing an unplanned child. For example, the effect of the caring responsibility on the
mother’s educational and career choices would differ (and depend also on her age,
39 Chester supra n 2 at [86] (Lord Walker); [16] (Lord Steyn); [22] (Lord Steyn); [55] (Lord Hope); [87]
(Lord Hope); cf. at [24] (Lord Steyn) and [101] (Lord Walker).
40 For a fuller analysis see Keren-Paz (2018).
41 See Bevilacqua v Altenkirk [2004] BCSC 945 in which the different parents’ motivations led to an
award of $30,000 to the mother and $20,000 to the father.
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Gender Injustice inCompensating Injury toAutonomy inEnglish…
socio-demographic background and available support). A conventional award does
not accommodate any of these factors.42
Secondly, Rees is also conspicuous for the paltry amount given as compensation
(or vindication). This is problematic.43 The injury in Rees ought to be considered at
the higher end of violation of one’s autonomy in terms of the context (reproductive
autonomy, which raises issues of sex equality) and its long-lasting and ever-present
consequences.44 The idea that £15,000 is sufficient to either vindicate the claimant’s
choice not to become a parent, or to compensate her for the profound effects of this
intrusion on her life is shocking indeed.
Thirdly, Chester erred by giving in effect a type 3 damages (for physical injury)
for a type 1 injury (loss of opportunity to consent which would have been given
had it been asked): As a type 1 injury, damages should be on the lower side of the
spectrum since the claimant would have conceded to undergo the procedure with the
associated risk. This means that (1) there is no causation between the breach of duty
to disclose the risk and the physical injury and (2) the ITA itself is less serious than
in type 2 cases (a subjectively inferior state of affairs post intervention), in which the
choice is more significant. After all, in type 2 the claimant would not have agreed to
be moved from the pre-intervention to the post-intervention state of affairs, while so
agreeing (had she been asked) in type 1.
Taken together, then, Chester awarded type 3 damages for a type 1 injury, i.e.
where the breach of duty did not cause the physical injury in seemingly a non-gen-
dered context of informed consent.45 In contrast, Rees failed to award type 3 dam-
ages (upkeep costs and forgone income in the labour market as a result of caring
responsibilities) and, in addition, failed to give full compensation for ITA type 2
(undermining the claimant’s life plan by thrusting motherhood upon her). By this, it
devalued perhaps the most significant type 2 injury (forced motherhood) by giving
in effect a type 1 remedy (for the notional undermining the claimant’s reproductive
autonomy), which is both of exceptional nature (a conventional award) and extraor-
dinarily low.46 If at all, type 1 injury (as in Chester) is more amenable to a conven-
tional award, since claimants in this category complain only of the fact that they
were deprived of the possibility to say yes, not of being subject to an inferior state of
affairs, where harm will naturally vary from one claimant to another.
42 A point lost on LJ Davies in Shaw supra n 4 [72].
43 For critique see e.g. Priaulx (2007, 73–76); Morris (2004, 16). For an understanding of the award as
vindication see Wilcox (2012, 405); Varuhas (2014, 269–270).
44 Both aspects were documented above in the gendered harms section.
45 It is possible, however, that even outside of the reproductive context, there is still a gendered pat-
tern of breaching more often the duty to attain female patients’ informed consent. Cf. Keren-Paz (2007a,
228–235), examining the desirability of type 1 damages awards from an egalitarian perspective.
46 These two critiques should be distinguished. A significantly higher conventional award could have
better reflected the profound undermining of such a fundamental aspect of one’s autonomy but would
still be of an exceptional nature and fail to cater for the different effect of forced motherhood on different
claimants.
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Rees andYearworth: His andHer Reproductive Autonomy Awards?
A look at the two reproductive autonomy cases—Rees and Yearworth—reveals quite
a different treatment of ITA (cf. Koenig and Rustad 1995). In Yearworth v North
Bristol NHS Trust, damages for mental distress were held to be available (subject to
proof of factual causation) as a consequence of learning that the claimants’ sperm
had been negligently destroyed by the defendant, which had undertaken to look after
the claimants’ sperm with all possible care. The court based this conclusion on two
factors: (1) characterising the relationship between the claimants and defendant as
gratuitous bailment; and (2) the applicability to bailment of contractual damages for
mental distress in cases where an object of the contract was to provide peace of
mind.47
As I explain in Keren-Paz (2017), despite facially being a type 3 (mental injury
consequent on property loss), type 2 is the more accurate classification. The nub of
the litigation was the lost chance to become a father (and the fear resulting from that
loss, even if the claimant subsequently regained fertility), which is clearly a type 2
injury related to one’s reproductive autonomy. Indeed, the court itself understood
the claim in this way, by noting that the purpose of the arrangement was ‘the provi-
sion to the men of non-pecuniary personal or family benefits. Any award of damages
should reflect the realities behind these arrangements and their intended purpose’.48
The defendant’s breach of duty in Yearworth obviously interfered with the repro-
ductive autonomy of those claimants who did not regain their fertility. There is much
to be said (on grounds of consistency) for the applicability of the conventional award
in Rees, irrespective of the availability of damages in bailment for mental distress.
Elsewhere (Keren-Paz 2018), I have noted five issues to be resolved in terms of
examining the consistency between the two cases. Here, I will focus on those impli-
cating gender justice: (1) whether a remedy for the ITA should accumulate (in both
cases) with damages for mental distress—otherwise, it seems that men’s interest in
reproductive autonomy is protected to a greater extent than women’s; (2) whether a
standalone remedy for undermining reproductive autonomy (as distinct from dam-
ages for mental distress) should be a conventional award (to be consistent with Rees)
or adhere to the principle of full compensation (given the critique offered above of
the conventional award); and (3) how, ideally, the quantum for ITA in Yearworth
(foregone fatherhood) should compare with that of Rees (imposed motherhood).
Could the claimants recover for both ITA and psychiatric injury or distress?
It is useful to distinguish between different groups of claimants. Firstly, there
are claimants who did not regain fertility, who ought to recover for ITA even if
they did not suffer psychiatric injury (or even distress, if ITA is to be measured
47 Yearworth supra n 5 [49, 56–58].
48 Ibid [57] (my emphasis). The care the court took to analyse the Human Fertilisation and Embryology
Act 1990 also supports this conclusion. But for current purposes, not much hangs on accepting as correct
my claim that the court itself viewed the claim in Yearworth as based on ITA 2. What matters is that the
case ought to be understood as protecting reproductive autonomy, and hence be condemned for the ensu-
ing inconsistencies with Rees.
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Gender Injustice inCompensating Injury toAutonomy inEnglish…
irrespective of the distress it causes49); otherwise, the type 3 award in Yearworth is
under-inclusive.50 Secondly, claimants who suffered psychiatric injury ought to be
compensated for that loss. Crucially, to be non-discriminatory, such entitlement—
which to be recalled is extended also to those suffering merely mental distress fall-
ing short of psychiatric injury—should inhere with Rees-like claimants.51 This is
especially so, given the enormity of harms stemming from forced motherhood, the
judicial tendency to misunderstand or belittle these harms and the need to respect
reproductive rights in a manner consistent with sex equality, as discussed above.
While the McFarlane court refused to normatively view unplanned motherhood
as detriment, there is evidence suggesting that postpartum depression is more likely
when the child is unplanned (Biggs etal. 2017). Surely, the decision in Yearworth
commands that the actual costs of postpartum depression should be remedied with-
out being capped by the £15,000 conventional award. As Bauer etal. (2014, 4) have
found, the average cost to society of one case of perinatal depression is around
£74,000, of which £23,000 relates to the mother and £51,000 relates to impacts on
the child.52 However, if imposed motherhood is normatively deemed to be a joy53
(to the extent it is used to offset upkeep costs) what normative space is left to com-
pensate mothers for the distress or, at times, postpartum depression which follows
imposed motherhood?
The second issue raises an important and general jurisprudential question of the
relationship between coherence and justice. Both Rees- and Yearworth-like claim-
ants should receive full compensation for the interference with their reproductive
autonomy. To the extent that a standalone ITA award in Yearworth would have been
set above £15,000 while the Rees limitation stands, I would see this as problem-
atic as both inconsistent and based on feminist critique of devaluing women’s inter-
ests (West 1988, 1997; Siegel 2007; Priaulx 2007). Indeed, that the actual award
the claimants in Yearworth are likely to receive far exceeds £15,000 is problematic
in terms of gender equality. This relates to the last issue that, in applying Rees, one
needs to decide whether interference with reproductive autonomy by denying par-
enthood is more, less or as serious as an interference imposing parenthood. One also
needs to decide whether these harms are gendered and, if so, whether this ought to
be reflected in the size of the award. These questions have to be answered, even if
the decisions in Rees and Yearworth are corrected, so that all types of interference
49 Space constraints do not allow discussing this important point. An analogy to Gulati v MGN Ltd
[2015] EWHC 1482; aff’d [2015] EWCA Civ 1291 (CA) might suggest a positive answer. Israeli courts
are in disagreement. See also (in a type 1 context) Keren-Paz (2007a, 198–200).
50 Claimants who suffered psychiatric injury, from the belief they would not be able to father children,
prior to regaining fertility, who therefore did not suffer permanent ITA, should also be compensated.
51 In wrongful conception cases, mental distress occasioned on the pregnancy and birth (as opposed to
rearing the child) could be recovered under McFarlane supra n 7.
52 Note, however, that this does not necessarily mean that the quantum of damages which is due to the
mother (if liability is established) exceeds £15,000.
53 Not all of the judges who have denied claims for wrongful conception have normatively deemed
motherhood to be a joy—some have argued that the benefits and burdens cannot be calculated.
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T.Keren-Paz
1 3
with reproductive autonomy would be remedied according to the principle of full
compensation.
These are difficult questions and space constraints prevent me from attempting to
answer them—any attempt to sketch answers would not do justice to the complex-
ity of the issues. Interestingly, neither Fox (2017) in his 91-page article focusing on
both imposed and denied parenthood, nor Sanger (2018) in her comment on Fox,
attempted to answer these questions. I will merely make three points. The common
law’s animosity towards the imposition of positive duties might suggest that, as a
starting point, imposed parenthood should be taken as a more serious wrong than
denied parenthood. If this is accepted, the remedy in Yearworth being (seemingly)
more generous than that in Rees is inconsistent with the system’s basic principles
and manifests androcentric bias (cf. Bernstein 2018).
However, this starting point is likely to be seriously contested, not least from
some feminist strands (e.g. a certain understanding of relational feminism). West
(1988, 53) highlights the experiential contradiction between women both valuing
intimacy and dreading the intrusion and invasion which intimacy implies (while
men have a similar contradiction between autonomy and alienation). This account
might be the foundation upon which the answers to these questions from a feminist
perspective could build.
Finally, any such answers should avoid the pitfall of adopting the existing andro-
centric measure in Yearworth as the anchoring point for determining the proper rem-
edy for imposed motherhood. This goes back to both the tension on which I have
commented in my previous writings between coherence and the attainment of sub-
stantive justice (Keren-Paz 2013, 2017) and, more broadly, the limits of law as a
transformative, progressive tool (the ‘master’s tools’ problem).
A Comparative Perspective: ACB v Thomson Medical Pte Ltd
Both under-theorisation and gender blindness mar the recent Singaporean decision
of ACB. The case involved a negligent mix-up of genetic material in an IVF process;
as a result, the baby daughter born had no genetic affiliation to the father and this
was apparent due to her darker skin tone. The Court of Appeal approved the lower
court’s rejection of the claim for upkeep costs and held that injury to autonomy is
not an actionable damage per se. However, ‘a loss of autonomy may underlie a more
specific award of damages in the context of a negligent interference with the plain-
tiff’s reproductive plans’.54 Such a loss was manifested in losing genetic affinity with
the baby. Damages should be substantive and individualised (i.e. not a conventional
award as in Rees); and for practical reasons, the damages could be set as a percent-
age of the upkeep costs. The court decided that in this case the award should be 30
percent of the upkeep cost and remanded the case for that cost to be calculated.55
54 Supra n 11 [115].
55 Ibid [150]. The court also denied the availability of punitive damages on the facts of the case while
leaving them as a rare possibility for claims in negligence.
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The decision is very rich and could easily be the subject of a standalone article.
In what follows, I will comment very briefly on directions for future analysis and
will focus on how ACB compares with English decisions in terms of a consistent
approach to protecting autonomy in negligence and of a gender analysis of reproduc-
tive torts. As we shall see, such evaluation would view ACB as a mixed bag.
As in English cases, ITA is not fully recognised in ACB as actionable damage.
The reasons afforded in the decision—conceptual, coherence and over-inclusiveness
objections56—are unconvincing, and nothing in the reasoning undermines my recent
conclusion (with which the court did not engage) that ITA ought to be recognised as
actionable damage (Keren-Paz 2017, 425–437). But of course, not all ITAs ought to be
remedied and reproductive autonomy seems to be protected in the decision, which is
commendable. On the positive side, three aspects of the decision are an improvement
on the decision in Rees and are in line with the critique offered above: that the award is
individualised, so consistent with the principle of full compensation57; substantive, so
not derisory58; and that the court appreciates that the main costs of unwanted parent-
hood are not pecuniary.59 This indicates that the court correctly understands under-
mining reproductive autonomy as a serious type 2 ITA and while the typology is not
explicitly present, some of the court’s analysis hints at its existence and relevance.60
On the negative side, as in English cases, there is hardly any overt appreciation
that reproductive harms are gendered and that this might be relevant to the extent
to which we deem the harm worthy of being actionable.61 Given the overall length
of the decision—136 pages—and the depth in which other policy considerations
were treated, the obliviousness to gender equality considerations is disappointing.62
Moreover, endorsing the equation of maintenance (upkeep costs) with loss of earn-
ings (consequent on care responsibilities)63 is oblivious to the gendered nature of the
latter (but less so the former) loss.
The case raises two other (and related) difficulties, which are absent in wrongful
conception cases but cannot be addressed here. First, a potential critical race critique
that the decision in fact views a different race (or more specifically a darker tone)
56 Ibid [115–124].
57 Ibid [141–142, 145].
58 Ibid [148].
59 Ibid [18, 107].
60 See in particular ibid [122, 130].
61 For example, the term parenthood is cited in the case more than 30 times; motherhood only once—a
quotation from a previous (English) case essentialising motherhood ‘unnatural rejection of womanhood
and motherhood would be generously compensated’. The closest appreciation of the issue as gendered
is a reference at [70] to LJ Hale’s speech in Parkinson v St James and Seacroft University Hospital NHS
Tru st [2001] EWCA Civ 530 noting the ‘consequences arising out of the unplanned pregnancy (which, as
she noted, were many and varied and which she described in powerful detail)’.
62 It could be argued that selecting ITA in reproductive torts as actionable damage against the general
rule disqualifying ITA as actionable damage is an example of gender sensitivity so that the gendered
nature of the harm operated as a ‘hidden persuader’. Even if this were true, the failure to give gender jus-
tice its proper due in the policy debate is problematic.
63 Supra n 11 [104].
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1 3
baby as injury64; and secondly, the limits of choice. It is one thing to accept that
having an unwanted child is an injury; it is another to accept that having a child with
different characteristics than you wished is. While I support an award for ITA 2 in
ACB as appropriate, I posit that even those disagreeing could still support a signifi-
cant award of damages in wrongful conception cases.
In terms of inconsistencies, I will limit my comments to the following three
(although there are more). First, some of the reasoning leading the court to reject
the upkeep costs and ITA as generally actionable (even if convincing on their own
terms) undermines the court’s recognition of reproductive autonomy, manifested
in absence of genetic affinity, as actionable. If claimants ‘consciously choosing’
to have genetic affiliation through IVF is a sufficient reason to hold the negligent
defendant under a duty to compensate them,65 why is the conscious choice not to
become a parent not a reason to compensate them for the upkeep and non-pecuniary
costs (which were denied), and the interference with their autonomy (which was left
as an open question)?66 Or conversely, if pecuniary (and non-pecuniary) costs are
irrecoverable since they are ‘about the consequences to the Appellant qua mother of
the existence of the child and the concomitant … relationship … [entailing] legal,
moral, and social obligations to care for, support, and nurture’67 how is it that the
claim for undermining genetic affiliation, also ‘qua mother’, is recoverable?
Secondly, in a twist to the normative ‘birth-cannot-be-a-loss’ argument, the court
explains that ‘parental obligations’ are based on a ‘custodial relationship between
parent and child and a relationship of trusteeship between the parents and wider
society’. ‘Neither of these relationships gives rise to obligations which are capable
of valuation as “loss” in any meaningful sense’,68 financial or care-based.69 How-
ever, the fact that a voluntary undertaking is a cornerstone condition for a fiduciary
duty70 should have led the court to reject the conclusion that parental obligations
‘are not capable of characterisation as a loss’,71 since ‘the Appellant did not, in fact,
have any choice in the matter’.72 On either of the following variants of the argument,
imposed parenthood ought not block parents from seeking compensation for their
losses: either that imposed parenthood cannot be based on a trusteeship relationship
(since it is not voluntary), or that seeking damages from the party whose negligence
64 The court (ibid at [131]–[135]) addressed this difficulty, quite convincingly in my opinion, by refer-
ence also to Sally Sheldon’s analysis (2011) of the Northern Ireland case of A and B by C v A Health and
Social Services Trust [2011] NICA 28. In A and B, the claim was framed as harm due to being born with
a different skin colour than the parents and was denied. Sheldon criticises ‘reducing the alleged harm to
irrelevant physical variation’, for failing to give voice to the true harm that was suffered and ignoring the
social context of likely racially based bullying of the child and questioning of the mother’s fidelity (cf.
McCandless (2017); and, in the US context, Fox (2017, 231–234)).
65 Supra n 11 [129].
66 Ibid [136].
67 Ibid [87].
68 Ibid [90].
69 Ibid [91–92].
70 See Bristol and West Building Society v Mothew [1998] Ch 1, 18; Finn (1977, 9).
71 Supra n 11 [90].
72 Ibid [84].
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created forced trusteeship does not undermine the nature of the parental obligation
and is compatible with it. Indeed, it hard to see why conceptually or symbolically,
let alone practically, seeking compensation from a third party is incompatible with
the parent’s duty to the child. In practice, such a right will only improve the parent’s
capacity to discharge the obligation to the child (cf. Keren-Paz 2007b, 147–148).
Thirdly, the commendable realisation that focusing ‘on the financial conse-
quences of the birth is … inadequate … [and] misleading’73 is undermined by meas-
uring the ITA as a percentage of upkeep costs (cf. Purshouse 2017, 15; Amirthal-
ingam 2018, 18). Besides being conceptually arbitrary, and returning pecuniary
costs to centre stage, such a rule is regressive, by extending the wealth-dependent
character of upkeep costs (used as an argument against awarding them in McFar-
lane)74 to ITA, and symbolically offensive, by suggesting that the value (measured
by upkeep costs) of a baby with lower genetic affinity is lower than a value of a baby
with full genetic affinity (this also undermining the court’s insistence that the hold-
ing does not denigrate adoption75).
Finally, it is unclear whether the court will allow recovery for wrongful concep-
tion in which there is no undermining of genetic affinity. In terms of ITA, however,
it will be odd to compensate parents who wanted a child with genetic affinity to both
parents but due to negligence had a child genetically affiliated only with the mother
but to refuse compensating parents who did not wish to raise a child at all (cf. Pur-
shouse 2017, 15–16; Fox (2017, 226, 231–233). Surely, the ITA is more significant
in the latter case? (Unless, for the court, the gist of the damage was reputational i.e.
the apparent lack of genetic affinity due to the difference in skin tone.76 As men-
tioned above, such a proposition is normatively contested).
A related difficulty is that in ACB the mother received damages for lessened
genetic affiliation with the baby, despite the fact that she is genetically affiliated to
the baby. This raises interesting questions about privity and scope of liability (cf.
Amirthalingam 2018, 20), and from a feminist perspective could be criticised as
androcentric and patriarchal. The interest recognised by the law as so deserving
compensation is the father’s interest in genetic affiliation with the child, although
this interest is dressed up as the mother’s interest in having a child genetically affili-
ated to her husband. Moreover, symbolically, the inference that damages connote a
devaluation of the specific child born seems to be stronger in wrongful fertilisation
in which the parents wanted a child, but not this one, than in wrongful conception,
in which the parents did not wish for a (or an additional) child at all (cf. Amirthal-
ingam 2018, 19).
73 Ibid [107].
74 Supra n 34.
75 Supra n 11 [129].
76 Ibid [131–134].
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52
T.Keren-Paz
1 3
Conclusion
The only English case explicitly compensating injury to autonomy as action-
able in negligence is Rees, in the context of failed sterilisation. As the discus-
sion demonstrated, however, rather than celebrating Rees as a feminist judgment,
we should lament it as demonstrating gender blindness and androcentrism when
examined both for itself and compared to Yearworth and Chester. To begin with,
Rees was decided against the background of McFarlane, which denied upkeep
costs due according to general principles, based on distributive justice consid-
erations; in so doing, it was oblivious to the fact that gender-based distributive
considerations support a substantial remedy for the gendered harm of wrongful
conception. The denial of substantive remedy undermined the mother’s auton-
omy, arguably in a discriminatory manner, by setting off, contrary to principle,
deemed joys imposed on the mother (non-pecuniary benefit) against the upkeep
costs (pecuniary damage). Worst still, in doing so, the court refused to legally
acknowledge that unwanted motherhood is a ‘detriment’, mansplaining to the
woman who explicitly sought not to become a mother that she is deemed to enjoy
the experience.
The decision in Rees, to award damages for the significant ITA type 2 involved
in becoming a mother involuntarily, could have been laudable but the following
facts make Rees a Pyrrhic victory to hopefuls of gender justice in tort law: that
what was awarded was (a) a conventional award deviating from the principle of
full compensation, (b) a derisory amount of merely £15,000 and (c) according to
Lord Millet an equal amount is due to the father.
In the broader context of Chester and Yearworth the picture only becomes
gloomier. A gender-neutral type 1 ITA, which is much less serious, receives in
Chester inflated type 3 remedy, while the significant gendered type 2 ITA of
becoming an involuntary mother receives a lower award. Worse still, English law
seems to remedy more favouringly type 2 injury to reproductive autonomy when
the claimants are men, than when they are women. Mental distress from the fear
of being negligently deprived from being a father is not subject to a conventional
award of low value, while damages for the significant, life changing consequences
of undermining a woman’s autonomy by negligently thrusting motherhood upon
her are capped.
From a comparative perspective, certain aspects of the ACB holding are an
improvement, namely, individualised and substantive award and (in theory) being
appreciative that the main costs of unwanted parenthood are non-pecuniary.
Beyond internal inconsistencies in the decision which were highlighted above, the
reasoning is problematic from a gender justice perspective in two related aspects.
First, it seems to prioritise lack of genetic affinity (having a much-wanted child,
but from the wrong father) over imposed motherhood as a greater undermining
of autonomy. This seems odd and representative in undermining the significance
of unplanned motherhood on the claimant’s ability to be the author of her life
story. Secondly, the interest recognised by the law as so deserving compensation
is the father’s interest in genetic affiliation with the child, although this interest is
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53
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Gender Injustice inCompensating Injury toAutonomy inEnglish…
dressed up as the mother’s interest in having a child genetically affiliated to her
husband. Such interest should not be looked down upon, but its remedying hardly
stands as a feminist triumph, especially in the context in which a right for sub-
stantive damages for imposed motherhood is yet to be recognised.
Acknowledgements I would like to thank Nicky Priaulx and FLS anonymous reviewers and editorial
board for extremely useful comments on previous drafts, and Bushra Jalil for excellent research assis-
tance. The article was supported by a Leverhulme Fellowship RF-2016-358\8 which is acknowledged
with thanks.
Open Access This article is distributed under the terms of the Creative Commons Attribution 4.0 Interna-
tional License (http://creat iveco mmons .org/licen ses/by/4.0/), which permits unrestricted use, distribution,
and reproduction in any medium, provided you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license, and indicate if changes were made.
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