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Every year there are parents who decide their family is complete and choose to undergo vasectomy (for the man) or sterilisation (for women). Of the two, vasectomy is the less invasive and safer procedure.
Both are reckoned to be effective, but nevertheless every year unwanted pregnancies result.
The cause of a failed procedure can be natural and non-negligent. Either the vas (the sperm duct) has regrown, or the fallopian tubes (which carry the ovum or egg to the womb) have grown back. This is a natural hazard which couples are warned about when the procedure is done.
It can also be caused by doctor error. In vasectomy cases sometimes it turns out that some other structure, such as a ligament, was cut. This may be picked up by the pathologist and still not notified to the patient. A claim is this situation is still difficult because the sperm sample will still show sperm and the patient will have been advised to avoid unprotected sex until the sample is clear. If he chose to ignore the advice it will be difficult to get compensation from the health service.
In sterilisation cases doctor error also occurs. The most common method used now in Britain is to apply one or two clips (called Filshie clips) to each Fallopian tube (the tubes which carry a woman’s eggs from the ovary to the womb). These have been known to slip off, but the suspicion that sometimes they were not properly fastened in the first place means that nowadays when the procedure is done by laparoscopy (microsurgery) the team will take a still picture of the clips in place and make sure a print-off is filed in the woman’s medical record. Other that the only way to find out what has become of the clips is often to wait until the sterilisation is repeated, when sometimes the procedure will be overseen by independent experts to see what evidence is found of earlier technical mistakes.
The reasons for failure of sterilisation may range from the clips never having been properly applied in the first place, to the tube having regrown. Which it is may never be known for certain, but as a rough rule of thumb, research indicates that the sooner after sterilisation conception occurs, the more likely it is that the clips were never applied properly in the first place, while conception several years after sterilisation tends to indicate that the tubes have regrown naturally.
Whatever the cause, the news of unwanted pregnancy can be devastating, with, in failed vasectomy cases, suspicions of unfaithfulness that can test longstanding relationships. Once over that, parents who thought their family was complete will turn to the law to compensate them what they see to be a medical mistake.
English law has wrestled at some length with how to compensate for these medical errors. Until 2000 the courts would award compensation for pain and suffering of labour and delivery and then in addition the costs of bringing up a child. Awards which included loss of earnings, nursery fees, school fees, clothing and so on, were very high indeed. Some defendants alleged that women who found themselves unexpectedly pregnant should mitigate the loss and terminate the pregnancy – a view not supported in the courts. Many in the legal system – as well as the National Health Service, which had to pay these awards - were uncomfortable with the idea that the birth of a child should be viewed as a calamity meriting compensation at all. In 2000 in Macfarlane v Tayside Health Board the House of Lords reversed the previous law and declined to award any upkeep for the child at all. But many still felt that compensation was not being awarded for the injustice. In 2001 in Parkinson v St James and Seacroft Hospital NHS Trust the Court of Appeal awarded the mother of a severely disabled child the extra costs of caring for a disabled as compared with a healthy child.
The next case to test the law in this area was Rees v Darlington Memorial Hospital. The mother in this case had a severe visual disability that had made her seek sterilisation as she felt could not care for a child because of her disability. Despite that, through the surgeon’s negligence she conceived and gave birth. The Court of Appeal ordered compensation for the costs of additional care. The NHS appealed to the House of Lords where the whole question of whether to award the cost of bringing up a healthy child was reviewed by no less than seven law lords who gave their judgments in October 2003. The issue causing unease was whether it was right only to award compensation for the pregnancy and a few months’ loss of earnings. As Lord Bingham put it:
"I question the fairness of a rule which denies the victim of a legal wrong any recompense at all beyond an award immediately related to the unwanted pregnancy and birth. The spectre of well-to-do parents plundering the National Health Service should not blind one to other realities: that of the single mother with young children, struggling to make ends meet and counting the days until her children are of an age to enable her to work more hours and so enable the family to live a less straitened existence; the mother whose burning ambition is to put domestic chores so far as possible behind her and embark on a new career or resume an old one. Examples can be multiplied. To speak of losing the freedom to limit the size of one's family is to mask the real loss suffered in a situation of this kind. This is that a parent, particularly (even today) the mother, has been denied, through the negligence of another, the opportunity to live her life in the way that she wished and planned. I do not think that an award immediately relating to the unwanted pregnancy and birth gives adequate recognition of or does justice to that loss”.
By a majority the court followed his view that there should be a “conventional” award of £15,000 to compensate a woman for the infringement of her right to limit her family size over and above awards for other loss – as well as £5,000 for the pain and suffering of pregnancy and labour. For the actual expenses of having a baby, she would be awarded her loss of earnings during the maternity leave period, plus the cost of one- off equipment such as a cot and pram, if they had not been retained. The law since then has remained settled.
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