Healthy law makes for healthy children: Cattanach v Melchior

When courts are forced to consider issues surrounding birth and the sanctity of life, it is inevitable that divergence of judicial, academic and public opinion will result. However, the issue of whether parents can recover the expenses of rearing a healthy child has long vexed judges and commentators of law, ethics and medicine both in Australia and globally, with considerable disunity. A cogent example is the recent High Court of Australia decision in Cattanach v Melchior (2003) 215 CLR 1, where the court split four to three and handed down no less than six individual judgments. The case involved the birth of a healthy child following an unplanned pregnancy resulting from a failed surgical sterilisation. By allowing parents to recover the reasonable expenses of rearing an unintended child until the age of 18 years, the decision has provided some limited and temporary legal clarity to the issue of wrongful pregnancy in Australia. It is seen by some as a victory for the reproductive freedom of women and the rights of the child. However, with uncertainty remaining on the issue of wrongful life claims in Australia and with legislative changes in Queensland and New South Wales that partly reverse the High Court's decision, there remains doubt about the future of such claims in Australia.