If a serious health condition with your baby was missed during pregnancy, you may have questions about whether you were given the information you should have received and whether you can make a wrongful birth claim.

A wrongful birth claim can arise when medical negligence during antenatal care prevents a pregnant mother from making a properly informed decision about whether to continue with the pregnancy. This might involve a failure to offer appropriate screening, an abnormality being missed on an ultrasound scan, incorrect test results or a failure to communicate important information about a health condition.

These claims can involve care provided by an NHS trust, a private healthcare provider or, in some circumstances, a private screening or testing service.

This guide explains who can bring a wrongful birth claim, who the claim may be brought against, what must be proven and how our medical negligence solicitors investigate what happened.

What Is a Wrongful Birth Claim?

A wrongful birth claim is a type of medical negligence claim that can arise when negligent antenatal care prevents a parent from receiving information about a fetal condition that would have affected their decision about whether to continue the pregnancy.

Conditions involved in wrongful birth cases may include Down’s syndrome, Edwards’ syndrome, Patau’s syndrome, spina bifida and other serious genetic or congenital conditions.

The term ‘wrongful birth’ can understandably sound insensitive. A claim does not suggest that the child’s life has less value or will be loved any less. The legal issue is whether medical negligence deprived the parent of the opportunity to make an informed decision about their pregnancy.

A missed diagnosis does not automatically mean that there are grounds to claim compensation. Some conditions cannot reasonably be identified before birth, and antenatal screening has limitations even when carried out correctly by medical professionals.

Who Can Bring a Wrongful Birth Claim?

A wrongful birth claim will generally be brought by the mother as she went through the pregnancy and was owed a direct duty of care by those treating her during that pregnancy. The circumstances of each family need to be assessed individually to establish who may have a claim and which losses can be included.

An important part of establishing eligibility is what would have happened if appropriate medical care had been provided.

It may be necessary to show that, had the condition been correctly identified and explained during pregnancy, the parent would have made a different decision about whether to continue the pregnancy.

The medical negligence team will therefore look at the whole antenatal pathway rather than simply establishing that a diagnosis was missed.

Can Both Parents Be Involved in the Claim?

The legal position can differ between parents, including in relation to which losses each person can recover. If both parents are involved in raising the child, then they share the financial responsibility. However, family circumstances can vary. 

For that reason, our medical negligence solicitors consider the individual circumstances of the family when establishing who should bring the claim and how any financial losses should be presented.

Evidence about discussions and decisions made by both parents may also be relevant when investigating what would probably have happened if they had received accurate information during pregnancy.

What Types of Missed Diagnosis Can Lead to a Wrongful Birth Claim?

Medical negligence can lead to a wrongful birth claim in several ways.

Examples include:

• A midwife or doctor failing to offer appropriate antenatal screening
• A sonographer failing to identify an abnormality that should reasonably have been detected
• A radiologist incorrectly interpreting imaging
• A blood sample or other screening test being incorrectly processed
• Genetic testing results being incorrectly interpreted or reported
• A higher-chance screening result not being communicated
• Further tests not being offered or arranged
• A GP failing to make an appropriate referral
• A delay in referring the parent to fetal medicine specialists
• Inadequate information being provided about a diagnosed or suspected condition

Under the NHS Fetal Anomaly Screening Programme in England, eligible pregnant women should be offered screening for Down’s syndrome, Edwards’ syndrome and Patau’s syndrome, as well as a 20-week screening scan for specified physical conditions. Women should receive appropriate information so they can make a personal, informed choice about screening.

A higher-chance screening result does not itself provide a diagnosis. Depending on the circumstances, further options can include non-invasive prenatal testing (NIPT) or diagnostic testing.

Who Can I Bring a Wrongful Birth Claim Against?

Who a wrongful birth claim is brought against depends on where the negligent care occurred and who was legally responsible for providing it.

Pregnancy care can involve several healthcare professionals and organisations, so identifying the appropriate defendant may require an investigation of the complete sequence of events.

NHS Trusts

Where negligent treatment took place through an NHS hospital or maternity service, a wrongful birth compensation claim may be brought against the NHS trust responsible for the care.

The treatment under investigation could have involved an obstetrician, midwife, sonographer, radiologist or another member of the medical team. For example, concerns could arise where a sonographer missed a significant abnormality or a midwife failed to arrange appropriate screening or follow-up.

The claim will usually be made against the responsible NHS trust rather than personally against the individual healthcare professional.

Read more about making an NHS negligence claim.

Private Clinicians and Hospitals

Wrongful birth claims are not limited to NHS care. If you received negligent antenatal medical treatment privately, it may be possible to bring a claim against the relevant private healthcare provider or clinician.

This might involve care from a private obstetrician, hospital, clinic or other healthcare professional involved in screening, diagnosis or advice during pregnancy.

Read more about making a claim against a private healthcare provider.

Private Screening and Testing Providers

Some parents arrange additional antenatal screening privately, including ultrasound scans and NIPT.

Where a private screening provider makes an avoidable error, a claim may be possible depending on the service it agreed to provide and the effect of that error.

For example, there may be grounds to investigate if a significant abnormality was negligently missed on a scan or a test result was incorrectly reported.

What If More Than One Healthcare Provider Was Involved?

Antenatal care can often involve several services. Someone might receive routine NHS maternity care, have a scan through a private clinic and later be referred to a specialist fetal medicine service.

If concerns arise at more than one stage, we can investigate each healthcare provider involved.

Medical records, screening results, ultrasound images, referral documents and correspondence can help establish a timeline showing what happened, what information was available and where any failures occurred.

This may identify negligence involving one organisation or failures involving several parts of the care pathway.

Does Every Missed Diagnosis Lead to a Claim?

A condition being missed does not, by itself, establish medical negligence.

Antenatal screening does not identify every genetic condition or birth defect, and screening tests have recognised limitations. Parents can also choose whether to accept or decline screening. NHS guidance specifically states that screening should be based on personal informed choice.

The question is whether the medical care fell below the standard reasonably expected and whether that failure made a difference to the outcome.

For example, there could be a very different legal position between a condition that could not reasonably have been identified during pregnancy and a clearly abnormal scan result that was negligently reported as normal.

What Must Be Proven in a Wrongful Birth Claim?

Making a successful wrongful birth claim requires evidence of both breach of duty and causation.

Breach of duty

We must establish that the care provided fell below a reasonable standard.

Depending on the case, independent medical experts may consider whether the relevant healthcare professional should have:

• Offered appropriate screening
• Identified an abnormality
• Correctly interpreted a test or scan
• Arranged further tests
• Made a specialist referral
• Communicated results promptly
• Provided appropriate information about the available options

Causation

It is also necessary to establish what difference the medical negligence made.

This may involve showing that reasonable care would probably have led to the condition being identified in time for the parent to receive appropriate information about their pregnancy options.

The parent’s decision is important. A claim may require evidence that, if properly informed, they would have chosen not to continue the pregnancy.

Current NHS fetal anomaly screening guidance emphasises personal informed choice. Pregnant women should receive accessible, accurate information covering the conditions screened for, the testing process, its risks and limitations and potential pregnancy options.

How Is a Parent’s Decision Assessed?

This can be one of the most sensitive aspects of a wrongful birth claim.

Our medical negligence team may consider:

• Which screening tests the parent chose to have
• What they were told about those tests
• Whether they requested or accepted further investigations
• What discussions were recorded in the medical records
• What they remember being told by doctors and midwives
• What information they would have received following the correct diagnosis
• What options would have been available at that stage of the pregnancy

There is no assumption about what a parent should have decided. The purpose is to establish what that particular parent would probably have done if they had received the information they should have been given.

What Evidence Is Needed for a Wrongful Birth Claim?

We start by building a clear picture of the standard of the antenatal care.

Evidence may include:

• Maternity medical records
• Ultrasound images and reports
• Antenatal screening results
• Blood test and laboratory records
• NIPT results
• Diagnostic testing records
• Referral letters
• Consent documentation
• Correspondence between healthcare providers
• Evidence from the parents
• Parents medical records 

We can then instruct independent medical experts in the appropriate fields, which may include obstetrics, fetal medicine, radiology, sonography or genetics.

These experts help establish what a reasonably competent healthcare professional should have done and whether different care would probably have resulted in the condition or abnormality being identified.

What Can Wrongful Birth Compensation Cover?

If a wrongful birth compensation claim succeeds, compensation may take account of the additional costs and needs associated with the child’s condition.

Depending on the circumstances, wrongful birth compensation may include the cost of:

• Additional care and support
• Specialist medical care
• Therapy and rehabilitation
• Specialist equipment
• Adapted accommodation
• Transport
• Additional educational support

Relevant lost income and other additional costs may also be considered.

Compensation is awarded in respect of additional costs until the child reaches 18 years, or often longer if the child is to remain under their parents’ care in adulthood.  

The case is brought by the parents as opposed to the parents on behalf of the child. As such, the calculation for future additional costs, upon which the overall compensation award is based, takes into consideration the parents’ life expectation as well as the child’s. It is important therefore for parents to make provision for their child if it is possible that their child may outlive them. 

Exactly how much compensation may be available depends on the individual circumstances, including the child’s condition and their current and future needs. Independent experts can assess these needs so that any compensation claim is based on evidence rather than assumptions about the impact of a particular diagnosis.

Is Wrongful Birth the Same as Wrongful Conception?

Although the terms are sometimes confused, wrongful birth and wrongful conception claims involve different circumstances.

A wrongful birth claim generally concerns negligent antenatal care that prevented parents from receiving information about a fetal condition.

Wrongful conception can arise where medical negligence results in an unplanned pregnancy, for example following a negligently performed sterilisation procedure. A failed sterilisation may therefore give rise to a wrongful conception claim, but this is legally distinct from a missed antenatal diagnosis.

Wrongful life claims are also different and are not a recognised cause of action under English law.

Read more about wrongful conception claims, and the definition of wrongful birth vs wrongful life claims.

How Long Do You Have to Bring a Wrongful Birth Claim?

There is generally a three-year time limit for starting a medical negligence claim. The relevant date will depend on the circumstances and may involve when the parent first knew, or could reasonably have known, that negligent care may have caused the relevant harm.

There are exceptions to the usual time limit in certain circumstances, so seeking specialist legal advice promptly allows the relevant dates to be established. Do not delay speaking to a solicitor for advice, even if you think the three-year period may have passed. 

Our medical negligence solicitors require sufficient time to obtain records, take evidence and instruct medical experts, so seeking prompt legal advice is the best course of action.

How Does the Claims Process Work?

We begin by discussing what happened and reviewing the available medical evidence. If there are grounds to investigate further, we obtain the relevant records and instruct independent experts.

If the evidence supports a medical negligence claim, a Letter of Claim can be sent to the defendant setting out the allegations and the harm caused.

The defendant then has an opportunity to investigate and respond. Further evidence may be required to assess the child’s long-term needs and the value of the wrongful birth compensation claim.

Court proceedings may sometimes be required, but starting proceedings does not necessarily mean that a case will go to trial.

Funding options will depend on the case. Where appropriate, we may be able to handle medical negligence claims under a no win, no fee basis, also known as a conditional fee agreement. We will explain legal fees and any financial risk before you decide whether to proceed.

Learn more about the medical negligence claims process.

How JMW Investigates Wrongful Birth Claims

Our team of wrongful birth lawyers includes members of the Law Society’s specialist panel of clinical negligence solicitors and the Action against Medical Accidents (AvMA) solicitors panel.

We understand that a wrongful birth claim involves highly personal decisions and questions about the information parents should have received during pregnancy. We approach these cases sensitively while carrying out a detailed investigation of the medical care provided.

Rather than looking at one appointment or test in isolation, we examine the entire antenatal pathway. This can include care provided by NHS trusts, private clinicians and screening providers, allowing us to identify where medical negligence occurred and what difference it made.

Where the evidence supports a claim, we also work with medical, care and other experts to understand the child’s additional needs and build a wrongful birth compensation claim that reflects the family's circumstances.