Parents of disabled child seek damages

A couple are fighting for compensation after having a disabled child who they would have aborted had they known of her condition.

Similar "wrongful birth" cases have resulted in millions of dollars in compensation being awarded overseas.

Twenty-eight-year-old Linda (not her real name) and her husband are appealing an ACC decision not to provide cover after doctors missed signs of spina bifida in their daughter during a 20-week scan.

They say that continuing with the pregnancy was a personal injury, and treatment for that (an abortion) was denied to them.

A district court found Linda's continued pregnancy was not an injury, but the couple have appealed to the High Court and the landmark case will be heard next year.

The Auckland couple say that if they are unsuccessful they will pursue a civil case against the doctors for negligence.

The family's lawyer, Philip Schmidt, said a civil suit would be a legal first for New Zealand.

In the United States, a growing number of obstetricians are being sued by patients who say they would have had abortions if prenatal tests had detected foetal abnormalities.

Some states have disallowed the cases on moral grounds, while others, such as Florida, have awarded millions of dollars in compensation to claimants.

In Britain, a mother is claiming NZ$3.5 million in compensation after a hospital failed to pick up her son's "severe, profound and multiple disabilities".

Linda said she was not ashamed of saying she would have aborted her daughter.

"In no way are we saying we don't want her now," she said.

"It would have been a very difficult decision – not something taken lightly – but with the information we would have had at the time, had they given it to us, that's the decision we would have made."

She said they were first-time parents and would not have wished a painful life on their daughter.

"We didn't have time to prepare before she was born, and we didn't have a choice with whether she was born or not."

Linda said she wanted to be able to tell her daughter that she did everything she could to guarantee a stable life for her.

Depending on her development, she would tell her about the court case, and hoped she would understand.

When Linda's daughter was born early in 2007, the neural tube connecting her spine and brain was not properly formed. She needed three operations within her first few weeks of life.

She is not yet walking and will need a catheter and possibly a wheelchair later in life.

An internal shunt removes excess spinal fluid, preventing pressure on her brain.

Linda said the extra costs and stress of having a disabled child ranged from finding suitable shoes to fit over her leg splints to buying a hand-drive car when she got older.

Linda receives 28 carer days a year, but cannot return to work, as she had planned before the birth.

Schmidt said the simple solution was to have Linda's situation covered by the ACC.

If not, the costs should fall on the health professionals involved.

"An apology does not help with the practical problems parents in this situation face.

"Compensation, however, is of great practical assistance," he said.

Linda said she was aware of the wide-ranging implications of her case.

"There are probably lots of people out there who haven't been able to or thought about doing it [applying for compensation]," she said.

"Even if it doesn't go through, it's important for people to know that this has happened."