Will repeal affect claims for medical negligence where a baby is stillborn or injured during birth?

Repeal does not have implications for medical negligence law.

Miscarriage/Stillbirth

Miscarriage refers to loss of a pregnancy before 24 weeks, and stillbirth refers to loss of a viable pregnancy at 24 weeks or later.

Under Irish law, a woman can only bring a claim for miscarriage or stillbirth if (i) the baby died as a result of the doctor’s negligence and (ii) she herself suffered physical or psychological harm as a result of that negligence.

Parents who lose a baby before or during birth cannot bring a claim on behalf of the baby. Unders. 58 of the Civil Liability Act 1961 no claim can be brought for prenatal injury to a baby unless it is subsequently born alive.

The 8th Amendment does not have any effect on this area of law, and so repeal would not change it.

In other jurisdictions, such as the UK, it is possible to bring medical negligence claims of this kind even without an equivalent law to the 8th Amendment.

Birth injury

If a child is born with injuries caused by a doctor’s medical negligence during pregnancy or birth, the parents can claim compensation on his or her behalf. This is confirmed by s. 58 of the Civil Liability Act 1961.

The 8th Amendment does not have any effect on this area of law, and so repeal would not change it.

In other jurisdictions, such as the UK, it is possible to bring medical negligence claims of this kind even without an equivalent law to the 8th Amendment.

Further Reading:

M v. Minister for Justice, Equality and Law Reform at paragraphs [9.9] – [9.14]

Civil Liability Act

 

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