Wrongful birth claims

If you or your partner has undergone a sterilisation or vasectomy procedure which has not been successful, resulting in an unplanned pregnancy, you may have a claim for wrongful birth. We would need to demonstrate that the pregnancy was as a result of medical negligence – this may be a surgical error, or negligent advice provided following the procedure. The wrongful birth claim would be brought on your behalf, arising from the negligent treatment you have received.

Failed tubal ligation

Female tubal ligation (also called female sterilisation) is where the fallopian tubes are blocked or cut to prevent sperm from meeting an egg. The operation is usually done using keyhole surgery. Clips or rings are applied over the fallopian tubes, or else they are cut and tied.

Negligence may occur where there is a failure to clip or cut one or both of the fallopian tubes, which enables an egg to become fertilised. Where tubal ligation fails, there is a higher risk of ectopic pregnancy where the fertilised egg implants itself inside one of the fallopian tubes.

Failed vasectomy

A vasectomy (also called male sterilisation) is a permanent method of contraception. The ducts in the penis which carry sperm from the testes are cut or sealed during surgery, to prevent sperm from being released during ejaculation. If the surgery is performed successfully, a couple can have intercourse without the risk of unwanted pregnancy. However, it is necessary to use contraception for the first 12 weeks following a vasectomy until a doctor has confirmed it has been successful.

Negligence may occur where a surgeon fails to correctly identify the sperm ducts or fails to cut or seal both sides of the ducts. On rare occasions, the way in which the surgeon seals the tubes may lead to recanalisation: the tubes on one or both sides reconnect after the procedure. A claim may also arise where there has been a failure to advise on initial contraception after the surgery.

Routine antenatal tests are designed to make pregnancy safer by monitoring the baby’s development and overall wellbeing with the aim of detecting a disease or condition in the early stages when treatment can be offered. They are not compulsory but are seen by most as an important part of pregnancy care.

Screening tests

Antenatal screening tests for serious conditions offered on the NHS include blood tests and ultrasound scans, as follows:

Combined test
Between 10 and 14 weeks of pregnancy, a ‘combined test’ is offered, which involves an ultrasound scan (usually at 12 weeks) and a blood test. During the scan, the fluid at the back of a baby’s neck is measured – this is the ‘nuchal translucency’. Results from the blood test, maternal age, and nuchal translucency are all used to calculate the risk of the baby having Down’s, Edwards’ or Patau’s syndrome. The risk will be given as either a ‘high-chance’ or ‘lower-chance’ result.

Quadruple (‘quad’) test
If a pregnancy has progressed by more than 14 weeks, another blood screening test, known as a quad test, is offered. This can be given between 14 and 20 weeks of pregnancy, only tests for Down’s syndrome, and is not as accurate as the combined test.

Non-invasive prenatal testing (NIPT) – a blood test giving a more accurate screening result – may also be offered where basic screening has produced a ‘high chance’ result.

Diagnostic tests

If the combined or quad tests produce a ‘higher-chance’ result, or where there is a family history of a genetic condition, options for diagnostic tests include:

• chorionic villus sampling (CVS) – where a small sample of cells from the placenta are tested
• amniocentesis – where a sample of amniotic fluid is taken for testing
• ultrasound scans.

Negligence can occur where:

• antenatal testing is not offered or performed within the appropriate window of opportunity;
• testing is performed but there is a failure to correctly identify a birth defect or condition;
• there is a failure to notify parents of a birth defect or condition.
• In situations where parents have sadly been advised during pregnancy that their baby may be born with a serious condition or birth defect, they might opt for a termination. Where this choice has been taken away as a result of negligence, our team of specialist solicitors is readily available to discuss your situation and offer guidance as you consider whether to make a wrongful birth compensation claim.

Parents may wish to have tests to confirm whether they are ‘carriers’ of a genetic condition – ie they do not have the condition themselves, but there is a risk that they could pass it on to their unborn children. The results of genetic tests may then inform their decision as to whether to have their own children. Examples of genetic conditions parents may want to test for are: cystic fibrosis, haemophilia, sickle cell disease, and spinal muscular atrophy (SMA).

Where there is a negligent failure to inform parents of their ‘carrier’ status following testing, or a failure to fully advise them on the risks of passing on the condition if they decide to start a family, a claim for wrongful birth may arise.

Patau’s syndrome

Otherwise known as ‘trisomy 13’, Patau’s syndrome is a chromosomal condition associated with severe intellectual disability and physical abnormalities in many parts of the body. Common features of this condition include heart defects; brain or spinal cord abnormalities; extra fingers or toes (polydactyl); weak muscle tone (hypotonia); very small or poorly developed eyes (microphthalmia); renal abnormalities; and a cleft lip and cleft palate. Most infants born with this condition survive days or weeks: only 5-10% live past their first year.

Antenatal screening tests are available to test for Patau’s syndrome. One of them, the ‘combined test’, can be performed only between around 11 and 14 weeks into the pregnancy. If the test produces a ‘higher risk’ result (defined as a one in 150 chance of the fetus being affected), the mother is offered more invasive testing of the amniotic fluid (amniocentesis), placental tissue (CVS) or fetal blood (fetal blood sampling). Each of these invasive tests, however, carries a small but significant risk of miscarriage.

On occasion, features indicative of Patau’s syndrome may be picked up on the ‘anomaly’ ultrasound scan performed at 20 weeks of pregnancy, even if the mother has been classed as ‘lower risk’ on combined screening.

Failure to diagnose Patau’s syndrome on antenatal screening can lead to a claim for wrongful birth.

Edwards’ syndrome

Otherwise known as ‘trisomy 18’, Edwards’ syndrome is another rare but serious genetic condition. Sadly the majority of babies born with Edwards’ syndrome die before or shortly after birth. Most babies with Edwards’ syndrome will have the full form of the syndrome where an extra copy of chromosome 18 is present in all of the baby’s cells. Some babies will have the ‘mosaic’ form, where an extra copy of the chromosome is present in only some cells. Babies born with full form Edwards’ syndrome will often have severe learning disabilities. Common physical disabilities include heart issues; seizures hearing loss; joint contractures causing deformity; and a cleft lip or palate.

The same screening and diagnostic testing which is offered to check for Patau’s syndrome is also available to test for Edwards’ syndrome. A wrongful birth claim may arise where there is a failure to perform these tests, a failure to diagnose or a failure to advise.