The House of Lords will rule on whether an unwanted baby is "blessing" or a "burden". George and Laura McFarlane are claiming compensation from their health board for the cost of raising their daughter Catherine to the age of 16 and for the pain suffered during pregnancy.
The 48-year-old forklift driver and his wife have taken their case to the highest court in the land after a Court of Session judge initially threw it out, insisting that a child was a "gift" and a "blessing".
But 18-months-ago three court of appeal judges overturned the decision, giving them leave to sue Tayside Health Board. In a judgement, Lord McCluskey, sitting with Lords Cullen and Allanbridge, said: "Every baby has a belly to be filled and a body to be clothed. To treat parenthood as a wholly unblemished blessing to the parents is to ignore the realities of experience."
The House of Lords case, due to be heard next month, will determine for the first time whether damages for unexpected pregnancies can be awarded to couples who have undergone sterilisation.
If the McFarlanes win their case then negligent health authorities across the country could have to pay-out for the pain associated with pregnancy. Lawyers say there are at least another 20 similar cases waiting on the outcome of the House of Lords decision.
The health board is fighting the claim on the grounds that the birth of a child is a matter of joy and not something which should be the subject of a claim for damages. Its principal solicitor, Alan Sharp, said: "A line has to be drawn somewhere otherwise health authorities will be sued for all kinds of things. I know one case where a couple even tried to sue for the cost of their daughter's wedding."
Mr McFarlane, from Arbroath, decided to have a vasectomy after he and his wife, now 44, agreed to stop having children with the birth of their fourth child. They allege that their youngest child was conceived because doctors negligently advised them that tests showed the operation had been successful and that they could begin having sexual intercourse without protection.
Tayside Health Board denies any liability and says that the birth was the result of the very small risk which is associated with vasectomies. It was a risk that a couple accepts when they consent to the vasectomy, said the health authority.
Edinburgh lawyer, Fred Tyler, representing the McFarlanes, said he had five other couples who want bring similar actions and that he has been contacted by other lawyers, with similar cases, from all over the country. "We are satisfied that we have got a good argument but it is impossible to second guess the House of Lords," he said.
He said his clients acknowledged the happiness associated with the birth of their child but this should not detract from their claim for damages.Reuse content