Discovering you are expecting a child when you had taken permanent steps to prevent a pregnancy can be a life-altering and potentially very distressing experience. When this happens as a result of a mistake by a medical professional, it can be even more difficult to process. In the legal world, a claim for compensation arising from these circumstances is known as a wrongful conception claim.

Wrongful conception, sometimes also called wrongful pregnancy, is a specific type of clinical negligence claim. It arises when a healthcare professional’s failure in care during a sterilisation procedure or when providing contraceptive advice directly leads to an unwanted pregnancy and subsequent birth.

It is important to understand the distinction between wrongful conception and a separate, though related, area of law known as wrongful birth. While both relate to an unplanned birth, they arise from very different circumstances as we explain below.  

When Can a Wrongful Conception Claim Arise?

For a wrongful conception claim to be considered, it must be proven that a doctor or surgeon was negligent and that this negligence directly caused the unwanted pregnancy. It is not enough that a procedure simply failed, and this will not entitle you to bring such a claim; it must have failed because the care provided was below a reasonable standard.

Common scenarios that lead to a wrongful conception claim include:

• Failed sterilisation: This is the most frequent cause of wrongful conception. Negligence can occur during female sterilisation procedures (tubal ligation) or a vasectomy if the surgeon makes an error, such as failing to block the tubes correctly.
• Negligent contraception advice: A claim may arise if a doctor provides incorrect information about the effectiveness of a contraceptive method or fails to advise on its correct usage.
• Incorrect fitting of devices: Negligence in the fitting of a contraceptive implant or an IUD (coil) can lead to its failure and an unplanned pregnancy.

Wrongful Conception versus Wrongful Birth

While the terms are sometimes used interchangeably, they have distinct legal meanings. Understanding the difference is key to knowing what you may be able to claim compensation for.

• Wrongful conception: A wrongful conception claim typically involves the birth of a healthy child. The core of the claim is that the parents took active surgical steps to prevent conception, but these did not succeed as a consequence of medical negligence. The legal action focuses on the physical and psychological consequences of the unwanted pregnancy and the loss of the parents' autonomy to decide the size of their family.
• Wrongful birth: Wrongful birth claims arise when parents state they would have chosen to terminate the pregnancy had they been properly informed by medical professionals about a significant risk of the child being born with a serious disability or birth defect. The negligence in wrongful birth cases is the failure to diagnose a condition (such as Down's syndrome or spina bifida) during prenatal screening, or the failure to warn parents of a known genetic risk. This failure denies the parents the ability to make an informed decision about the pregnancy. The focus of wrongful birth claims is often on securing compensation for the significant additional costs associated with raising a disabled child.

What Compensation Can Be Claimed for Wrongful Conception?

The law in England and Wales places specific limits on the compensation available for a wrongful conception claim. The court aims to compensate for the direct consequences of the negligence, rather than the entire cost of raising a child.

If your claim is successful, you may be able to receive compensation for:

• Pain, suffering and distress: This is a payment to the mother for the physical and emotional pain and inconvenience of the unwanted pregnancy and childbirth. It may also account for psychological consequences, such as postnatal depression.
• Loss of earnings: Financial losses incurred by the parents as a direct result of the pregnancy and birth, such as time taken off work for maternity leave.
• Associated costs: The cost of baby clothes and other items needed for a newborn.
• Loss of autonomy: Following the landmark case of Rees v Darlington Memorial Hospital, the court may grant a "conventional award". This is a fixed sum acknowledging the loss of your right to plan your family.

A crucial point established by the House of Lords in the case of McFarlane v Tayside Health Board is that parents cannot claim the general costs of raising a healthy child to adulthood. The court decided that, as a matter of public policy, the joy and benefits of raising a healthy child are considered to outweigh the financial cost.

What if the Child Is Born With a Disability?

The situation changes if the child born following a wrongful conception has a disability. The courts have recognised the significant extra financial burden this places on parents.

In the case of Parkinson v St James & Seacroft University Hospital NHS Trust, it was ruled that while the general cost of raising the child could not be claimed, the parents could claim the additional costs directly associated with the child’s specific disability. This can cover the cost of special equipment, therapies, home adaptations, and extra care throughout the child's life.

This is still different from a wrongful birth claim, where the negligence was the failure to detect that specific disability before the child was born. In a wrongful conception case with a disabled child, the negligence was the failed sterilisation or contraceptive advice itself.

How Do You Prove a Wrongful Conception Claim?

To succeed in a wrongful conception claim, you must show that medical negligence occurred and that it directly caused the unwanted pregnancy and birth of a child.

In legal terms, this falls under tort law. You must prove that a doctor or surgeon owed you a duty of care, that they breached that duty through a negligent act, and that this failure led to conception. It is not enough that a sterilisation procedure or contraceptive implant failed. The failure must have happened because the care fell below a reasonable standard.

In most cases, this involves examining what happened during female sterilisation procedures, a failed male vasectomy, or the negligent fitting of a coil or contraceptive implant. The court will consider whether a competent doctor would have carried out such procedures differently. If the care was substandard and directly resulted in an unplanned pregnancy, you may be entitled to claim compensation.

Proving causation is central to such a claim. You must show that, but for the negligence, conception would not have occurred. For example, if a sterilisation procedure was performed incorrectly, expert evidence must confirm that the error caused the unwanted pregnancy. If negligent contraception advice was given, it must be shown that you relied on that advice and that it led to conception.

We start by gathering detailed evidence to build your case. This includes:

• Your own records of symptoms, appointments and discussions with your doctor.
• Copies of your medical records, showing what advice was given or how a procedure was carried out.
• Statements from family members or anyone who attended appointments with you.

We then instruct independent medical experts to review the care you received. They assess whether a reasonable standard of care was met and, if not, whether the negligence caused the pregnancy and birth. Their evidence is essential in wrongful conception and other birth claims.

You must bring your claim within the legal time limit. In England and Wales, you generally have three years from the date you became aware that negligence may have led to the pregnancy. We explain more about time limits in our guide to medical negligence claims.

Every wrongful conception claim turns on its own facts. By carefully analysing the medical evidence and obtaining independent expert opinions, we establish whether the negligence led to the unwanted pregnancy and its consequences.