‘Children are a blessing’ has become a catchcry in the highly emotive and at times shrill public reaction to the recent High Court decision of Cattanach v. Melchior. By a majority of four to three the High Court upheld a decision of the Supreme Court of Queensland to award $105,249 to a Brisbane couple, Kerry and Craig Melchior, because of a failed sterilisation operation which had resulted in the birth of their third child, Jordan.
Two days after the judgment was handed down, Deputy Prime Minister John Anderson was quoted in front-page newspaper articles: ‘It is repugnant that the birth of a healthy child, like Jordan, should be the subject of damages … Children are a gift from above, not an economic burden that can be enumerated and tabulated.’ Continuing his attack on the decision Mr Anderson asked, ‘Do we no longer understand that when we devalue and cheapen one life, we devalue and cheapen all life—and with it threaten our cherished freedoms?’
Commentators followed this rhetoric, branding the decision one that reflected the High Court’s ‘progressive devaluation of human life’ and that reduced the existence of a child to that of a chattel (Angela Shanahan in The Age, 22 July 2003). A further issue raised in the fallout from the case was the ‘nightmarish’ consequences in terms of further litigation, with dire warnings that the ‘risk of lawsuits would force doctors to stop sterilisation procedures and even prescribing the Pill’. (Herald Sun, 18 July 2003)
The case certainly raises difficult ethical and moral issues, and this is reflected in the split decision of the court and the six separate judgments generated by the seven judges. However, these broad statements about the value of human life and the rather hysterical tenor of the public reaction obscures the actual legal issues with which the High Court is grappling and the complex realities of pregnancy, birth and raising a child.
The issue before the High Court was not, of course, ‘What is the value of human life?’ but was limited to whether the costs of raising and maintaining a child born as a consequence of a failed sterilisation operation should be recoverable by the child’s parents as damages in a negligence action.
The doctor’s negligence was not at issue in the High Court proceedings. The lower courts had found that the doctor had been negligent in failing to inform his patient, Mrs Melchior, after a sterilisation operation