Medical Malpractice

Wrongful Birth Claim Lawyers in Canada

"Wrongful birth" is a legal term, and an unfortunate one. It does not describe a child. It describes a claim brought by parents who say negligent care denied them accurate information and the chance to make an informed decision about a pregnancy.

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The name of this claim causes real distress to families, so it is worth being direct about what it means. The law is not saying a birth was wrong, and it is not placing a value on a child's life. It is addressing a narrower failure: information a family was entitled to receive, and did not.

These claims typically follow negligence in prenatal care — screening not offered, a result mishandled or never communicated, a condition visible on imaging that was not identified, or a family never told what their results meant. What is compensable is the loss of informed choice and the additional costs of care that follow from it.

The team of lawyers at Diamond and Diamond have experience handling these claims across Canada, and we approach them with the sensitivity they require. Scheduling a consultation is the first step toward understanding your rights and determining the strength of your case.

Past results are not necessarily indicative of future results and the amount recovered and other litigation outcomes will vary according to the facts in individual cases.

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How It Works

Start with a Free Consultation

1

Start Your Claim

Fill out our simple form for a free case evaluation — getting started with Diamond & Diamond is quick and straightforward.

2

We Review Your Case

Our legal team reviews your prenatal records, test results, imaging, and clinic notes to assess whether the accepted standard of care was met and what information you should have received.

3

We Advance Your Claim

If we take on your case, we pursue compensation for the loss of informed choice and the additional care your family now needs.

Understanding the Claim

Wrongful Birth and Wrongful Life Are Not the Same

This distinction matters, because one of these claims is recognised in Canadian law and the other is not. A wrongful birth claim belongs to the parents. It says that negligent care deprived them of information they needed to make their own decisions about the pregnancy. Canadian courts have accepted these claims since the 1970s.

A wrongful life claim is brought by the child, arguing that but for the negligence they would not have been born at all. Canadian courts have not recognised this claim anywhere in the country. The Ontario Court of Appeal addressed the point in Florence v. Benzaquen, 2021 ONCA 523, and the Supreme Court of Canada declined to hear a further appeal in March 2022. Appellate courts elsewhere have reached the same conclusion, including the Manitoba Court of Appeal in Lacroix v. Dominique, 2001 MBCA 122, as did the Ontario Court of Appeal earlier in Bovingdon v. Hergott, 2008 ONCA 2.

A separate and important point: a child injured by negligence during pregnancy or delivery can bring a claim in their own right once born alive. The Supreme Court of Canada recognised that principle in Montreal Tramways Co. v. Léveillé, [1933] SCR 456, and it applies across Canada. That is an ordinary negligence claim, not a wrongful life claim, and it is unaffected by the cases above.

Wrongful birth and wrongful life are not the same
Common Allegations

Failures That Give Rise to Wrongful Birth Claims

What unites these allegations is information: a family who would have known something, and would have had choices to make, if the care had met the accepted standard.

These claims are factually demanding. Beyond establishing that the care fell short, they require evidence about what the family would have done had they been properly informed — which is a personal question, and one handled with care.

Frequently raised in these claims

  • Prenatal screening not offered or not discussed
  • A screening or diagnostic result reported incorrectly
  • A positive or concerning result never communicated to the family
  • Findings visible on imaging that were not identified
  • Diagnostic testing not offered after a positive screening result
  • Failure to refer for genetic counselling
  • Family history or known risk factors not acted upon
  • Results explained in a way that misrepresented what they meant
  • Results delivered too late for the family to consider their options
  • Failed sterilisation or negligent contraceptive advice
  • Testing arranged without informed consent to the test itself
Did You Know?
"If you believe you were denied information during your pregnancy, request your complete prenatal file — test requisitions, laboratory reports, ultrasound images and reports, referral letters, and clinic notes. These will greatly assist your legal team in reviewing your case."
— Diamond & Diamond Lawyers
Damages in a wrongful birth claim
Compensation & Damages

Damages in a Wrongful Birth Claim

How damages are assessed in these claims remains one of the less settled areas of Canadian law, and courts have taken different approaches to how the loss should be characterised. What is consistently recognised is the loss of the opportunity to make an informed decision, and the extraordinary costs of care attributable to a child's condition.

In a claim of this kind, the loss the law recognises is the loss of accurate information and the opportunity to make an informed decision, together with the additional costs of care that follow. A child's life is never treated as the harm, and these claims are approached with that firmly in mind. Claims commonly cover the additional costs of medical treatment, therapy and early intervention, adaptive equipment, home and vehicle modifications, attendant care, and income a parent loses in providing that care. Because the law here is unsettled, the approach taken in any individual case requires careful assessment.

Non-financial damages may also be available to parents, including for the psychological effect of being denied information they were entitled to. Courts evaluate these based on previous case law that attributes a financial value to the impact on a person's life.

Were You Denied Information During Your Pregnancy? Call Us Today.

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Your Legal Team

Working with Wrongful Birth Claim Lawyers

Physicians, midwives, sonographers, laboratories, and genetic services each have a duty to provide accurate information and to obtain informed consent. When that duty is breached and a family is deprived of choices they were entitled to make, you need a legal team with the experience and resources to navigate the complexities of medical malpractice law.

The team of lawyers at Diamond and Diamond have experience handling these claims and will work to protect your family's rights while providing you with clear, honest legal guidance throughout the process. Diamond and Diamond has offices in Ontario, Alberta, British Columbia and Nova Scotia, and the team handles medical malpractice claims for clients across Canada. These matters are personal, and they are handled with that in mind.

Avoid making contact with other parties involved in your case. Your lawyers from Diamond and Diamond should be your main point of contact in any medical malpractice matter. Contact our law firm now to discuss your case.

Diamond & Diamond legal team
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Important Information About Wrongful Birth Claims

The foundation of any medical malpractice claim rests on proving that the health care provider fell below the accepted standard of care. In a wrongful birth claim, that usually concerns information: whether testing was offered, whether results were accurately produced and reported, and whether they were explained so the family could make a real decision.

Establishing this standard typically requires evidence from qualified professionals in prenatal care, imaging, or genetics. An experienced personal injury lawyer at Diamond and Diamond can help you navigate this process.

Prenatal care standard of care

The second question in these claims is what the information would have changed. It asks what the family would have done had they been properly informed — whether they would have sought further testing, made a different decision, or prepared differently.

This is a personal question and an uncomfortable one to be asked. It is approached carefully, and it is answered with evidence about the family's own circumstances, values, and the choices realistically available to them at the time.

Proving causation in a wrongful birth claim

Request your complete prenatal file: test requisitions, laboratory reports, every ultrasound image and written report, referral letters, and clinic notes. Write down what you were told at each appointment, by whom, and what you asked.

Avoid discussing a potential claim with the providers involved in your care. Your next step should be to contact a personal injury lawyer with experience in medical malpractice cases, who can evaluate your situation during a free consultation.

What to do in a wrongful birth case

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Frequently Asked Questions

Does a wrongful birth claim say my child should not have been born?
No, and the name of the claim does it a disservice. The claim concerns information the family was entitled to receive and the choices that information would have opened. It makes no statement about a child's worth, and it should never be presented as though it does.
What is the difference between wrongful birth and wrongful life?
A wrongful birth claim belongs to the parents and is recognised in Canadian law. A wrongful life claim is brought by the child, arguing they should not have been born at all, and courts across Canada have not recognised it — most recently in Florence v. Benzaquen, 2021 ONCA 523, where the Supreme Court of Canada declined a further appeal.
Can my child still bring a claim of their own?
Yes, where they were injured by negligence rather than simply born following it. A child injured during pregnancy or delivery can claim in their own right once born alive. That is an ordinary negligence claim and is not affected by the wrongful life decisions.
What does a wrongful birth claim actually compensate?
The loss of the opportunity to make an informed decision, and the extraordinary costs of care attributable to the child's condition — medical treatment, therapy, equipment, home modifications, attendant care, and income a parent loses providing that care.
Will I be asked what I would have decided?
Yes, in some form. Causation in these claims turns on what you would have done with accurate information. It is a difficult question and it is approached with care, but it cannot be avoided entirely because it is central to the claim.
Do these claims only arise from prenatal testing?
No. They can also follow a failed sterilisation procedure, negligent contraceptive advice, or a failure to advise about a known inherited condition. What the situations share is a decision the parents were denied the ability to make.
Is the law in this area settled?
Not entirely. Courts across Canada agree these claims can proceed but have taken different approaches to assessing damages, particularly in how the loss is characterised, and those approaches differ from province to province. That makes an early and careful assessment of an individual case especially important.
What is the Canadian Medical Protective Association (CMPA)?
The CMPA is a mutual defence organization that provides legal defence and liability protection to physicians in Canada. When a medical malpractice claim is filed, the CMPA typically represents the physician. Having experienced legal representation on your side is important when facing the resources of the CMPA.

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