Watson, Ngaire --- "Editorial: The complexities of birth" [2023] PrecedentAULA 1; (2023) 174 Precedent 2

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THE COMPLEXITIES OF BIRTH

By Ngaire Watson

The topic of babies can give rise to strong emotions, especially in the context of pain and suffering. A baby is entirely reliant on its caregiver to protect it from harm and to provide an environment in which it can thrive. However, as we are aware, not all stories about babies have a happy ending.

Plaintiff lawyers encounter a great number of traumatised clients but, in my experience, it is the loss of or injury to a baby or child that evokes the most profound distress and grief in a family. For this reason, these cases can be particularly challenging for lawyers. With the advances in medical science we seem to know more and are potentially able to do more but, of course, humans are fallible and make mistakes.

The articles in this edition make for compelling reading as they cover a spectrum of events and experiences people can encounter at the complex intersection of babies and the law. This ranges from people who are unable but desperately want to have a baby and seek intervention, to those who have an unwanted pregnancy resulting in a wrongful birth claim.

The desire for a child can be a profound and does not necessarily happen naturally. It is startling that only one in five children born via surrogacy to Australian intended parents are born domestically. Stephen Page examines the mash-up of laws governing surrogacy that exists in Australia.

Bill Madden provides a useful exploration of wrongful birth and damages, taking us through the relevant case law.

Bree Knoester and Jyoti Haikerwal provide two case studies that disentangle the complex causation issues in infant cerebral palsy claims. Their discussion of the functions and ramifications of genetic testing and neuroradiological investigation will leave legal practitioners aware of the necessity of a deep understanding of the pathology involved in such cases.

Dr Ken Maclean discusses the rapid development and clinical application of genetic technologies, which have added further layers of complexity. Ken explores the ethical, legal and social implications of genomic sequencing.

Sadly, there are those who would seek to harm children through trafficking and criminal activity. Sally Nicholes and Keturah Sageman examine this challenging topic in their investigation of intercountry adoption, relocation and abduction.

Pregnancy can be a risky business for a woman and the issue of consent to treatment frequently comes up, particularly during labour. Dr Sara Salehi and Professor Jon Hyett dive into clinical scenarios to examine this issue.

Solicitor Jane Bulter teams up with psychiatrist Dr Sharon Reutens to sensitively examine how the litigation process can cause distress and potentially even injure a plaintiff. In the course of litigation our clients are required to obtain expert evidence, which may reveal distressing information. This can be a pertinent consideration in matters involving injuries to babies and young children. The authors offer thoughtful suggestions regarding how to best work with vulnerable clients and cushion them from the impacts of bad news and the contents of expert reports.

Given the nature of this edition and the articles brought together, one cannot help but reflect on how these difficult and complex cases affect the lawyers who work with these clients.

Every client who seeks legal advice about the above matters is potentially traumatised as a result of the events they are living through. As lawyers we are required to read and digest graphic material and images in medical records. We do so in order to be able to advise and guide our clients through the lengthy and difficult process of litigation. Over the course of our careers, we do this many, many times. In processing the information and doing the work, we are inevitably touched by the human suffering we encounter. In turn, we can become at risk of experiencing vicarious trauma. We may feel deeply for the people going through such difficult ordeals, particularly if we have children of our own. Our own self-care is also important. Support is available through our professional organisations, and indeed, from each other.

Ngaire Watson is a barrister and registered nurse who specialises in medical negligence litigation. Before studying law, she worked in acute care medical and surgical hospital settings, and then as a mental health nurse and psychoanalyst. EMAIL [e-mail] WEBSITE www.2selborne.com.au.