First wrongful birth case to be heard in Irish courts settled with interim payout of €1.8m

Before the test was done, the mother, the High Court heard, had resolved to exercise her constitutional right to travel to the UK to have the pregnancy terminated if the test came back as abnormal which meant the child had the debilitating genetic condition.

This is the first wrongful birth case based upon the right to travel to succeed at the High Court.

Oonah McCrann SC for the mother told the court that after the normal result back on the test, the parents had proceeded happily and joyfully with the pregnancy and they suffered enormous shock and grief when the baby was born and found to have the rare genetic condition with very significant and profound disability requiring 24-hour care.

At the outset of the hearing, Mr Justice Kevin Cross made an order that nothing be published which would identify the mother and child.

The mother had sued The Rotunda Hospital, Dublin and Our Lady's Children's Hospital, Dublin.

Full liability in the case was only conceded by letter on June 13 last.

The letter which was referred to in court stated: "In the particular circumstances of this case and in light of the outcome of the recent referendum repealing the 8th Amendment to the Constitution" it was conceding liability and withdrawing the public policy defence.

Mr Justice Cross noting liability has been conceded said he accepted that but he would have thought the result of the referendum had nothing to do with it.

Ms McCrann said very significant issues of law arose in the case and events outside of the Four Courts had overtaken matters.

It was claimed the mother who is a carrier of a rare genetic condition was concerned for her unborn baby and attended with a genetic counsellor at Our Lady's Hospital and a special test was arranged at The Rotunda Hospital.

It was claimed that Our Lady's Hospital was expressly on notice that should the test result be abnormal the woman and her husband had resolved she should exercise her constitutional right to travel to the UK to have her pregnancy terminated.

The woman attended for the test and the mother was later informed by telephone the test results were normal.

The purpose of the test it was claimed was so the mother would be aware whether her unborn baby suffered from the inherited rare genetic condition.

The purpose of having the knowledge was so that the mother would be able to exercise an informed choice about the remainder of her pregnancy and the treatment including the possibility of travelling to another jurisdiction for a termination.

The mother it was claimed was informed the test result was normal when in fact it was abnormal.

She claimed her constitutional rights had been breached and in particular the right to determine what happens to her own body and whether or not she wished to carry a pregnancy to conclusion.

She was, it was claimed deprived of the ability to gave an informed consent and to make an informed choice in respect of the continuance of her pregnancy.

She had also alleged the right to determine whether or not giving birth to a child with such a genetic condition would be in the best interests of her family in respect of current members and any future children that might be born.

The family, it was claimed now had the emotional physical and monetary cost of raising a severely handicapped child and the mother has to endure seeing her child live a life of suffering and of very poor quality and as a result claimed she suffered significant psychological upset and distress.

Mr Justice Cross approved the interim payment of €1.8m for the next four years when the case will come back before the court to assess the child's future care needs.

Afterwards, the solicitors firm which represented the mother Malcomson Law said it was the first wrongful birth case based upon the right to travel to come before the Irish courts. The case, the statement said, was also unique in the application of periodic payment order to such an event had not occurred in any jurisdiction worldwide.

it said the family of the child are relieved his legal battle has been resolved in favour of their child.

"The worry and concern as to what care facilities would be available for this child into the future and indeed after the death of the parents has now been alleviated, it said.

It added: "It is a travesty that the issue of public policy relating to the entitlement to damages at all was maintained as an issue in the case up to a concession, some nine days before the case was due to commence ."

It said litigation risk was maintained in the case by way of a public policy argument that created that created unnecessary worry and concern for the mother.

"It is a relief that this action is resolved in such satisfactory terms for the family concerned considering the enormity of the personal calamity that exists in the context of care requirements.", it stated.