Scope of Duty
12 As Studdert J recognised, a medical adviser to prospective parents does owe a duty of care to the prospective child. (See e.g. Watt v Rama [1972] VR 353; X and Y (by her tutor X) v Pal (1991) 23 NSWLR 26; Burton v Islington Health Authority [1993] QB 204). Mason P elaborates on the scope of that duty. Mr P Brereton SC, who appeared for the Respondents, accepted that a duty to the child could extend to ensuring that a child is not injured in the course of pregnancy or birth and even to ensuring that the child when born is in a better condition than would otherwise be the case.
13 The issue to be determined in the cases before the Court, however, is whether this recognised duty encompasses conduct which, if it had been properly performed without negligence, would have led to termination of the pregnancy or non-conception. The afflictions from which the Appellants suffer were not preventable in any other way. (Although Keeden's case does not, as discussed below, clearly link all his disabilities to the genetic defect, the separate question posed by Studdert J operates on that assumption). In neither case was there an option of being born without disability.
14 A case of this character requires a return to first principles. The well known dictum of Lord Atkin in Donoghue v Stevenson [1932] AC 562 at 580 bears repetition:
"The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question".
15 Although these words have received much elaboration and specific application over the three quarters of a century in which they have served as a general principle, they remain a reference point. There are several aspects of the dictum which are pertinent for the resolution of the present case. These are:
(i) The express recognition of the ethical foundations of the legal rule, i.e. "love your neighbour".
(ii) The recognition that the persons to whom a duty is owed must be confined - "a restricted reply" - namely, to those who are both "closely" and "directly" in fact "affected" by the conduct which is "called in question".
(iii) The nature of the consequences for which a person is to be held responsible must answer the description of an "injury" to the person who asserts the duty.
16 In my opinion, notwithstanding the fluctuations of subsequent tort jurisprudence, nothing in the case law affects the matters I have identified.
17 The ethical foundations of the law of negligence may be found in alternative sources. The religious minded may refer to the New Testament - "love thy neighbour as thyself" (Matthew 19:19). The secular minded may refer to Immanuel Kant's categorical imperative - act according to the maxim that what you will, should become a universal law.
18 The delineation of legal duties has never been derived from an exclusively legal analysis. The law is not, nor has it ever been, an entirely autonomous, isolated and self-sufficient intellectual construct.
19 We have, however, become so accustomed to finding legal 'duties' by the application of principles expressed in legal analysis that the determination of duty has come to have the appearance of a purely legal decision. Decades of decision making which employed only legal concepts has created a situation in which there is false appearance of intellectual autonomy. Cases such as the present require attention to the ethical foundation of the relevant legal principles.
20 The most important aspect of the ethical basis for legal duties that have been recognised by the law of negligence is that a duty must reflect values generally, or at least widely, held in the community. Such values often emerge from what Oliver Wendell Holmes famously described as "the felt necessities of the times". The values change and the courts must adapt to new community standards.
21 In my opinion, the duty asserted by the Appellants should not be accepted as it does not reflect values generally, or even widely, held in the community.
22 It is common ground that, in the respective circumstances of the two appeals, termination of the pregnancy would have been lawful. However, the fact that conduct is acceptable is only a necessary, but not a sufficient, foundation for acknowledging a duty to act in such a way as may lead to the conduct occurring.
23 The majority in Cattanach v Melchoir (2003) 77 ALJR 1312 (at [79] per McHugh and Gummow JJ, [141]-[148] and [151] per Kirby J, [292] per Callinan J, see also [195]-[197] per Hayne J) rejected the "blessing" argument that the benefit of a child outweighs the damage which the parents suffer. The determination of the value to a parent of the life of a child, it appears to me, raises quite different considerations to a case in which it is the child who, directly or by an agent, puts in issue the value of her or his own life, to herself or himself. Such a claim directly raises sanctity of life considerations. A claim by parents does not. There is, in my opinion, no issue of inconsistency or legal coherence if the two kinds of proceedings lead to different results.
24 It is not, in my opinion, possible to avoid or obfuscate the fact that an action by a disabled child, as distinct from an action by the parents, involves an assertion by the child that it would be preferable if she or he had not been born. This proposition raises ethical issues of the same character as those involved in the debate over euthanasia. It is sufficient for present purposes to note that the issues are highly contestable and are strenuously contested. There is no widely accepted ethical principle. The law of negligence should not, therefore, recognise a legal duty to the child.
25 The second relevant aspect of Lord Atkin's dictum is the need for "directness" in the relationship between the persons to whom and by whom a duty is said to be owed. In the cases before the Court, the relationship is mediated through the parents, to whom the provider of medical services owes duties which overlap, in substantial measure, with those said to be owed to the child. Furthermore, the duty to the child is said to be fully performed if the medical provider puts the parents, or the mother alone (in the submissions put on behalf of Alexia), in a position to make a fully informed decision to terminate the pregnancy (or otherwise avoid conception, in the case of Keeden).
26 The quality of 'directness' contains an inherent amorphousness. Nevertheless, I cannot see that a duty so mediated has the requisite directness when the issue arising - the conduct "called in question", in Lord Atkin's phrase - does not relate to the health of the child, but to whether it will be born at all.
27 The persons whom the medical provider "ought reasonably have in contemplation", in Lord Atkin's words, are, in my opinion, the parents, particularly the mother. (See e.g. Veivers v Connelly [1995] 2 Qd R 326; CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47). Any decision will be theirs or hers alone. Whether they, or she, take into consideration the interests of the child is a matter for them, or her. With respect to the decision as to whether or not a child will be born at all, I do not find it appropriate to characterise the parents as, in some way, acting on behalf of the child. They are entitled to act in their own interests. That in a particular case they would act only in the child's interests does not determine whether a duty is owed to the child.
28 Furthermore, if there were a duty to avoid harm to the child, I do not see how that duty could be discharged merely by providing information to the parents. That the Appellants accept that this is so indicates, in my opinion, that the relationship between the tortfeasor and the child is not sufficiently 'direct'.
29 On the issue of duty, matters arise in the case of Keeden that do not arise in the case of Alexia. The implications of recognising a duty in a case involving the effects of a maternal disease on a child are not the same as the transmission of characteristics through genetic inheritance.
30 As the discussion by Ipp JA of the implications of the expansion of genetic knowledge shows, Keeden's case raises questions of scope and indeterminate outcome of liability, which do not arise in Alexia's case. In particular, the case raises an important issue of how public policy should respond to the practicability of eugenics.
31 The identification of what is to be regarded as "acceptable" physical characteristics of children is a field into which the law should not, at least at this stage of the development of knowledge, in my opinion, enter. Specifically, the law should be very slow to decide how much "disability" is to be regarded as acceptable. Is, for example, hereditary deafness enough? (See Turpin v Sortini 643 P2d 954 (1982) Supreme Court of California). It is a short step to being asked to compensate for disappointed expectations about physical characteristics which parents wished their children to have.
32 Subject to the above observations, I agree with the reasons of Ipp JA in that part of his Honour's judgment under the sub-heading "Do the interests of the Appellants attract the protection of the law?"
33 In my opinion, there was no relevant duty of care in either case. In the case of Keeden there are additional reasons for so concluding. Each appeal should be dismissed.