AS TO THE ADMISSIBILITY OF

Application No. 24844/94

by Megan REEVE

against the United Kingdom

The European Commission of Human Rights sitting in private on 30 November 1994, the following members being present:

Present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber,

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 2 April 1994 by Megan REEVE against the United Kingdom and registered on 8 August 1994 under file No. 24844/94;

Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1992 and resident in Rochester. She is represented before the Commission by Mr. Richard Gambrill , a solicitor practising in Rochester.

The facts as submitted by the applicant may be summarised as follows.

a. Particular circumstances of the case

During the course of her fifth pregnancy, the applicant’s mother Mrs. Reeve attended at Gravesend hospital for ante-natal consultations. A routine ultrasound scan was carried out when she was 21 weeks pregnant. A second scan was taken at 33 weeks. A slight dilation was noted and a rescan taken 2 weeks later in respect of which the medical record indicated "dilated ventricles." A week later the repeat scan again was recorded as at "upper limit of normal?".

The possibility that these findings indicated that the existence of ventricular dilation or hydrocephalus was not mentioned or discussed with Mrs. Reeve, who states that in fact that she was assured that nothing was wrong.

Mrs. Reeve gave birth to the applicant on 7 May 1992. A lump was noted on the applicant’s back by the midwife. A diagnosis was made of meningocele , a form of spina bifida (congenital defect of the spine) and a further examination revealed that the applicant suffered from hydrocephalus.

A medical opinion dated 14 April 1994 indicated that there was a failure in care in failing to detect, or carry out more detailed scanning which would have detected, the abnormality from which the applicant suffered.

The applicant and her parents instituted proceedings against the health authority on the basis that but for the negligence of the hospital the applicant’s serious handicap would have been identified before birth and Mrs. Reeve would have terminated the pregnancy.

By opinion dated 11 January 1994, counsel confirmed an earlier opinion by counsel of 30 July 1993 that no action for wrongful  life could be brought in light of the provisions of the Congenital Disabilities (Civil Liability Act) 1976. He did advise that the applicant’s parents had good prospects of success against the health authority and could claim damages for the loss of earnings, cost of care etc.

b. Relevant domestic law and practice

The Congenital Disabilities (Civil Liability) Act 1976 provides inter alia :

"1 Civil liability to child born disabled

(1) If a child is born disabled as a result of such an occurrence mentioned in subsection (2) below, and a person (other than the child’s own mother) is under this section answerable to the child in respect of the occurrence, the child’s disabilities are to be regarded as damage resulting from the wrongful act of that person and actionable accordingly at the suit of the child.

(2) An occurrence to which this section applies is one which -

(a) affected either parent of the child in his or her ability to have a normal healthy child; or

(b) affected the mother during her pregnancy, or affected her or her child in the course of its birth, so that the child is born with disabilities which would not otherwise have been present."

The section gives the child no right of action for "wrongful life". Sub-section (2)b is so worded as to import the assumption that, but for the occurrence giving rise to a disabled birth the child would have been born normal and healthy, not that it would not have been born at all (General Note Vol. 45 Halsbury’s Laws of England).

In the case of McKay v. Essex Area Health Authority (1982 2 AER 771) a mother and child, born severely disabled, instituted proceedings alleging negligence in that the doctor had failed to diagnose rubella in the mother in her early pregnancy and had accordingly not advised the mother of the desirability of an abortion. The action of the child for "wrongful entry into life" was initially struck out as disclosing no cause of action. On appeal to the Court of Appeal, it was held that the 1976 Act was intended to give the child no action for "wrongful life". Lord Justice Stephenson , in deciding that the action should be struck out, held, inter alia , that although the doctor could lawfully have conducted an abortion, this did not mean that he could be held to be under a legal obligation to a foetus to do so or that the foetus had a legal right to die.

"To impose such a duty towards the child would, in my opinion, make a further inroad on the sanctity  of human life which would be contrary to public policy. It would mean regarding the life of a handicapped child as not only less valuable than the life of a normal child but so much less valuable that it was not worth preserving...

Added to that objection must be the opening of the courts to claims by children born handicapped against their mothers for not having an abortion...

Finally there is the nature of the injury and damage which the court is being asked to ascertain and evaluate...The only loss for which those who have not injured the child can be held liable to compensate the child is the difference between its condition as a result of their allowing it to be born alive and injured and its condition if its embryonic life had been ended before its life in the world had begun. But how can a court of law evaluate that second condition and so measure the loss to the child?"

COMPLAINTS

The applicant complains that she is barred by the Congenital Disabilities (Civil Liability) Act 1976 from bringing a claim for damages for the negligence of the health authority in the absence of which her parents would have been able to decide upon an abortion. She invokes Article 6 para . 1 of the Convention.

THE LAW

The applicant complains that she is prevented from pursuing an action for damages against the health authority in respect of their negligence in failing to identify before her birth the congenital disability from which she suffered which would have enabled her parents to decide upon termination of the pregnancy. She invokes Article 6 para . 1 which provides in its first sentence:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law... "

The case-law of the Commission and Court establishes that Article 6 para . 1 secures to everyone the right to have any claim relating to his or her civil rights and obligations brought before a court of tribunal ( eg . Eur . Court H.R. Golder judgment of 21 February 1975, Series A no. 18 p. 18, para . 36).

Article 6 para . 1 does not in itself however guarantee any particular content for "rights and obligations" in the substantive law of the contracting states (see eg . Eur . Court H.R., James and others judgment of 21 February 1986, Series A no. 98, para . 81; Eur . Court H.R., Lithgow and others judgment of 8 July 1986, Series A no. 102, p. 70, para . 192).

In the present case, the content of the right to bring actions in respect of congenital disabilities of children may be regarded as limited in domestic law to claims in respect of damage but for which the child would have been born normal or healthy and excluding claims to the effect that but for the negligence the child would not have been born at all. It is therefore questionable whether the applicant in this case may claim to have been deprived of access to court in the determination of her "civil rights".

However, even assuming that the inability to bring proceedings  for "wrongful life" is taken as constituting a limitation on the right to bring claims in respect of congenital defects and therefore as a restriction on effective access to court to vindicate the civil right, the Commission finds that the requirements of Article 6 para . 1 were not violated for the reasons set out below.

The Commission recalls that the right of access to court guaranteed by Article 6 para . 1 is not absolute, but may be regulated by States, which have a certain margin of appreciation, provided the essence of the right is not impaired.              The Commission must therefore examine whether the limitation on access to court which results from the availability of the defence of privilege pursues a legitimate aim and bears a reasonable relationship of proportionality to that aim in the circumstances (see Eur . Court H.R,, Ashingdane judgment of 28 May 1985, Series A no. 93, pp. 24-25 paras . 55-57).

The Commission notes that the United Kingdom law does not allow an action for "wrongful life". It appears that the law is based on the premise that a doctor cannot be considered as being under a duty to the foetus to terminate it and that any claim of such a kind would be contrary to public policy as violating the sanctity of human life. Having regard to the moral and ethical considerations involved in this area, the Commission finds that the restriction, which pursues the aim of upholding the right to life, must be considered as falling within the State’s margin of appreciation. It finds the restriction reasonably proportionate, given that claims lie for any wrongful act which contributes to a child’s disabilities and that insofar as the wrongful act affects the parents, action may lie for the damages which they have suffered and compensation obtained for cost of care.

It follows that the application must be dismissed as manifestly ill-founded within the meaning of Article 27 para . 2 of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber         President of the First Chamber

       (M.F. BUQUICCHIO)                       (A. WEITZEL)