Wrongful conceptions of 'harm': rethinking unsolicited parenthood in an era of choice

Wrongful conception and birth suits hold a troubled past and future. As a response to rapid advancement and increased choice in reproduction, these actions have introduced to the courts the legally and ethically problematic question, “can parenthood ever constitute an injury?” At the heart of the dilemma lies the manner by which law and society conceptualise ‘harm’. Is this part of the normal vicissitudes of life, or a harmful event? But this question is not decided within a legal vacuum; public policy factors have deeply influenced the nature and existence of case law. In conducting a contextual examination of these actions, this thesis examines from a feminist perspective how concepts of harm and autonomy are judicially characterised within negligence law, and explores the tensions emerging from conflicting constructs.

Considering the controversial question of whether parents should receive compensation for the birth of a child, this thesis also pursues neglected questions arising from these actions. Can one ever describe the ‘natural’ biological process of pregnancy as ‘damage’ to a woman? Should a woman be required to minimise the losses entailed with rearing a child by abortion or adoption? In revealing the limited degree to which law values women’s reproductive autonomy, these questions have become crucial in understanding the decline of these reproductive torts. But this thesis goes further, and argues that law is very consciously playing on traditional stereotypes of maternity to justify the imposition of responsibility for reproductive risks onto women. In seeking to disrupt the invocation of the law’s liberal framework of the autonomy ideal underpinning these actions, this thesis embraces the notion of ‘complex personhood’ and calls for an understanding of reproductive harm that resonates a deeper and relational understanding of reproductive choice and responsibility.