An estranged couple have lost their landmark High Court case aimed at securing the estimated €380,000 costs of rearing two children born after the woman had a failed sterilisation procedure at a Dublin hospital.
The action was the first in the Republic where the substantial cost was sought of rearing to adulthood children born after a sterilisation.
Having analysed UK decisions to the effect that the benefits of a healthy child outweigh any loss incurred in rearing that child and that children are "a blessing", Mr Justice Peter Kelly decided yesterday that the value placed by the Constitution on the family and on the dignity and protection of human life was better served by a decision to refuse damages of the type claimed.
To allow such damages would also open the door to a "limitless range" of claims related to every aspect of family life, he believed.
However, the judge awarded Bridget Byrne a total of €90,000 damages against the Coombe hospital in Dublin for the physical consequences of the failure of the first sterilisation procedure - the pain, suffering and inconvenience of two pregnancies and childbirth.
The €90,000 includes €10,000 for having to undergo a second sterilisation procedure.
He found the hospital had breached its primary duty to inform her of the failure of the sterilisation.
There was further breach of duty given that Ms Byrne was a public patient referred to the hospital and not to an individual consultant, he held.
The judge also found the hospital was liable for any want of care on the part of the now retired consultant, Dr Charles Murray, who carried out the procedure.
The proceedings were brought in two separate actions by Ms Byrne, Lee Drive, Calverstown, Kilcullen, Co Kildare, and her estranged husband Daniel, arising from the sterilisation procedure carried out on Ms Byrne at the Coombe hospital in Dublin on December 16th, 1999.
Ms Byrne, then a mother of five, later gave birth to a daughter, Danielle, in September 2000, and to a son, Damien, in August 2001.
In his 74-page reserved judgment yesterday, Mr Justice Kelly said it had been agreed the costs of rearing the two children to date as €27,000 and €354,678 for the future.
He noted Ms Byrne has been at pains throughout her case to make it clear Danielle and Damien were welcomed into her family by both parents and siblings and were loved and cherished.
Given this acknowledgment of the joy and satisfaction the two children had brought to her, there was "a certain incongruity" in Ms Byrne seeking to recover the costs of rearing them, the judge said.
It was not open to Ms Byrne to recover damages for the cost of bringing up the two healthy children which she bore subsequent to her failed sterilisation, he found. He did not believe the law here should be extended to allow the recovery of such damages.
It would not be fair or reasonable, he believed, to impose on a doctor who negligently performs a sterilisation procedure the cost of rearing a healthy child born subsequent to the failure of the procedure.