McKay v Essex Area Health Authority [1982] 2 All ER 771

X gave birth to a disabled child and Plaintiff claimed that had it not been for Defendant’s negligence (failing to tell X that Plaintiff would be disabled), X would have aborted him.

Plaintiff sued for allowing his “wrongful life” i.e. allowing his birth which was a life of suffering.

CA dismissed Plaintiff’s appeal on the grounds that doctors were not under a duty of care to the foetus to terminate its existence if it was disabled: all they could do was give advice to the mother.

• Also, to allow the claim would be to strongly incentivise doctors to advise abortions, which for policy reasons (sanctity of life) was bad.

• Also they couldn’t allow the claim because this would require them to value “non-existence” so that they could compare it with Plaintiff’s current life - impossible.

Duties of care only exist where Plaintiff can be compensated through measuring what has been lost: not possible here.

Though the Congenital Disabilities Act didn’t apply here (the events occurred before its introduction) the effect of the act did not include cases where Plaintiff had “lost the chance to not be born”.