Australia : A doctor has been convicted for a birth
Genethique monthly Newsletter - July 2003
Ineffective sterilisation

11 years ago, an Australian woman asked to have a tubal ligature to avoid any further pregnancies. A few years later, in spite of the tubal ligature, she has become pregnant. The couple have sued for damages and interest.
The Australian High Court has just announced its verdict : The doctor who performed the operation is to pay the couple 208,000 $ : 103,000 $ of "damages" for the birth and 105,000 $ for the child's education.
As a result of that decision, the Australian doctors have demonstrated, threatening to stop performing certain operations. Meanwhile, the Australian Medical Association has sounded a warning and is particularly concerned that doctors can be charged with funding the education of their patients' children.
Other voices have been raised denouncing this legal decision : in particular Barbara Mc Donald from the University of Sydney regrets that this decision considers that the birth is an impediment. In her opinion, such a verdict opens the door to legal action between couples. If a woman forgets to take her contraceptive, will she be liable to be sued by her partner ?
A similar case in Italy
In Italy, La Stampa revealed a similar case in September 2002. A woman who wished to be "protected" from pregnancy, decided to have a tubal ligature. However, the operation failed and the "unexpected" child was born on 31st December 1996.
The Venetian Court condemned the doctor, Ruggero Pasqualeto, to pay
92,782 € for the damage caused and 11,492 € to cover the costs of the case. The sentence, which was considered severe, took into account the fact that instead of performing a conventional tubal ligature, the doctor had used an unusual procedure, which is theoretically less traumatic, but the result had not been properly checked, and was in fact defective.
During the case, the doctor's lawyer was not embarrassed to suggest that if the woman really did not want the child, she could have aborted. That argument was challenged by the Order of Italian Doctors, who subsequently declared in an interview that to resort to abortion as an alternative to an ineffective sterilisation operation, was unacceptable. Notwithstanding, this was the first time that such a verdict was pronounced.
New "Perruche" cases ?
These judgements appear to be similar to the "Perruche" case, in that the court recognises that an unwanted birth can be justification for compensation. It should be remembered that in the Perruche case, it was the child who was claiming for compensation for its own birth.