You Should Never Look a Gift Horse in the Mouth: One-Size-Fits-All Compensation in Wrongful Conception

This article reconsiders the, now nine year old, House of Lords’ decision in Rees v. Darlington Memorial Hospital NHS Trust, which was, to say the least, a novel claim that found resolution in a previously unheard of approach. It was novel because of the solution which was adopted by the House of Lords to resolve the issue of compensating for Wrongful Conception. Ms Rees presented the courts with a set of factual circumstances that had not been envisaged in the development of the law in this country or any other, it was the first case which concerned the health of the parent rather than the child. This article will begin by giving a brief explanation of Rees and the prior decisions which led to the adoption of such a novel and, it is submitted, highly unconventional approach. It will show that, despite an unwillingness to reconsider it, the Mcfarlane decision no longer stands as the highest authority in this area; Rees is, at least, on a par with it. In the main body the article will then go on to critically consider the adoption of the conventional award, and the justifications given for and against it, and the use of Lord Scott's professional negligence analogy. In so doing, some wider criticisms of the judiciary's approach to these cases will be made in context