Blessed or burdened by childbirth?

The birth of a child is usually a cause for celebration. Most parents, even those with pre-natal nerves, attest to falling in love with their very own screaming bundle of baby from the first moment they see it.

Not all conceptions are planned or wanted. Some are even planned against. But now in New Zealand, in a decision conceived in the mind of a district court judge in a case legally referred to as D v ACC and Madhuri Ballal, it appears an unwanted pregnancy can even be a personal injury - and attract compensation.

For some, the idea of pregnancy being akin to a strain, a sprain or a blow to the head will take some getting used to.

"Pregnancy is often extremely awkward or comes at the worst time," said Bernard Moran, spokesman for Voice for Life. "But to say it's a personal injury and something that can be compensated for is not right. I find that a very sad and disturbing decision."

It's a response to be expected from a man involved in such an organisation, but it's not exclusive to anti-abortionists. Inconvenience, many parents say, is not a good enough reason to label their child a mistake, an injury, for the rest of its life.

Take Julia, an Auckland mother of one. She knows what it's like to be caught short by a do-it-yourself pregnancy test.

Julia remembers feeling lost, scared and worried about what her partner Mark, who was away at the time, would say. Just a month earlier, the couple had discussed children and decided they were at least five years off.

"I think we probably wouldn't have had any had nature not intervened," she said. "That was a mutual decision. It was more about wanting to live and to travel and have a good time than a financial or age thing."

They decided to have the child, Sophie, and they love her like any other parents. The idea she might be a personal injury is abhorrent to Julia - but she knows the issue is intensely personal.

"I don't think it's anyone's call to foist a baby on a woman who doesn't want it. It's too huge a responsibility. And if a friend of mine was in that position, I know I would support her whatever decision she made."

In the case of D v ACC and Ballal, the circumstances were different. After deciding four children were enough, for financial and social reasons, D - or Sarah, as we have called her - had her tubes tied. But the procedure failed, for reasons Sarah needs to show amount to medical misadventure, and she became pregnant. Nine months later a baby boy was born, but he wasn't healthy.

Sarah, who was unaware she was pregnant, had not taken all the care a woman in her condition should, and she believes this explains why her fifth child has serious eczema as well as a heart condition.

Judge John Cadenhead's decision has led some to claim the floodgates will now be open to anyone wanting to claim compensation for an unwanted pregnancy.

Not so, said ACC law expert, Victoria University law lecturer John Miller. Deciding pregnancy could be a personal injury was just the first hurdle. To get anything out of ACC coffers, a mother would then have to prove it was an injury the ACC legislation covered.

Simply put, Miller said, the pregnancy would need to be caused either by medical misadventure (now called treatment injury) or an accident. Pregnancy resulting from rape was covered separately.

Miller said if the case was successful, there would be questions over how much someone might win. "I suppose what most people would be thinking about is being stuck with the costs of this kid," he said. "I know I'd be a rich guy if I didn't have four kids. But overseas, countries have stopped short of actually giving compensation for the costs of raising a child."

In Britain, said Miller, costs were capped at 15,000 for the burden of pregnancy and birth.

The argument was that the compensation was for an injury until it went away. In this case, the "injury" was pregnancy, and giving birth made it go away.

The situations where a mother or even the child might be able to claim ongoing compensation or a lump sum - say if the child was born disabled as a result of the medical misadventure - would be limited, said Miller.

Australia is the closest exception. In May 1997 Jordan Melchior was born to parents Craig and Kerry in similar circumstances to the case of Sarah in D v ACC and Ballal. Jordan was the result of a botched tubal ligation and the Melchiors sued for negligence, claiming the cost of his upbringing. In 2003, four out of seven Australian High Court judges agreed and the Melchiors received an award of AU$105,249.

There are, of course, myriad other arguments judges and parents have to address. Which is why, said Miller, New Zealand courts were unlikely to award money for the cost of bringing up a child.

"One would always be marked as the unwanted kid. It's against public policy to fragment families and kids like that."

It would be an oddly constant reminder that Johnny wasn't wanted, said Miller. "It's better for happy families that children are welcomed into the fold."

Former Minister of Women's Affairs and veteran women's advocate Margaret Shields worried that society was becoming too litigious, always looking for someone to blame for accidents. "I can see how some people would be horrified at comparing pregnancy to injury," she said.

"But it's wrong to generalise. I've never felt it was okay to judge on someone else's circumstances if they feel incapable of raising a child."

But she also said such cases did not come up often. And, she added, it was far better that a parent who had an unwanted pregnancy be given the support to care for that baby. When the baby was old enough to understand, the parents would love it like any other, and it would never be made to feel like a strain, sprain or blow to the head.

- HERALD ON SUNDAY