Jan Marin and Pinta Maguire seek clearer rules on economic loss and patient rights
From trial courts to courts of appeal, the treatment of wrongful pregnancy claims in Canada remains inconsistent. Jan Marin and Pinta Maguire are working to change that.
“There’s a lack of clarity in the law, and sometimes the right thing to do is take on a case in an unsettled area,” says Marin, senior counsel at Gluckstein Lawyers. “It’s not only legally sound—it’s essential for advocating for clients and the losses they’ve suffered.”
Canadian law draws sharp distinctions between related claims.
Wrongful life claims where a child claims they should not have been born with a disability and related suffering are not recognized. The law maintains that life, even with hardship, is preferable to non-existence.
Wrongful birth claims, by contrast, are accepted. These arise when a wanted pregnancy is improperly monitored and results in a child with significant and extraordinary care needs —such as when genetic testing fails — depriving parents of the choice to terminate. In such cases, damages for the extraordinary costs of raising a child with a disability may be awarded.
Wrongful pregnancy sits in a more uncertain space. These claims can flow from failed sterilization procedures, contraceptive errors, or institutional negligence. For example, a pregnancy occurring in a psychiatric facility may raise questions about a failure of supervisory care.
“I’ve spoken to many counsel, and there are very different views about whether these claims are viable at all,” Maguire says. “But when someone has an additional, unwanted child, the economic costs are real. There should be recourse.”
While Canadian courts generally accept that wrongful pregnancy claims can proceed, they diverge significantly on how damages should be calculated.
“The key question,” Maguire explains, “is whether negligence has impaired the plaintiff’s ability to meet responsibilities to the child, or resulted in economic losses to the parents. The birth of a child alone is not automatically considered a compensable harm.”
Courts have developed several competing approaches:
Total recovery approach allows parents to claim all reasonably foreseeable damages, including the full cost of raising the child, without deducting benefits. Critics argue this may overcompensate plaintiffs, as raising a child also brings intangible benefits.
Offset/benefits approach permits recovery of child-rearing costs, but deducts the benefits of parenthood. Some courts have struggled with this model, often calling it impractical due to the difficulty of quantifying emotional and personal benefits.
Limited damages approach restricts recovery to pregnancy-related losses — such as medical expenses, labour/birth related pain and suffering, maternity leave cost and initial childcare costs — excluding long-term child-rearing expenses.
No recovery approach treats the birth of a child as a net benefit, denying damages altogether. Courts applying this model often reason that the costs of raising a healthy child cannot be characterized as a legal injury.
Some decisions suggest that context matters—particularly financial circumstances.
In certain cases, courts have recognized that when sterilization is sought due to financial hardship, the economic burden of an unplanned child may constitute a compensable injury.
For Marin, this inconsistency underscores the need for a unified framework.
“There isn’t a greater right to recovery just because someone has a greater need—it’s about economic loss and basic principles of tort law,” she says. “If negligence causes economic harm, it should be compensable. Why would wrongful pregnancy be any different?”
At firms like Gluckstein Lawyers, the lack of legal consistency creates real risks for both clients and counsel.
Because outcomes are unpredictable, pursuing these claims can feel like a gamble. Clients face potential cost consequences if unsuccessful, while firms operating on contingency must weigh the risk of prolonged litigation and appeals.
“It’s not always easy to take on the case that could change the law,” Marin says. “But it’s something we’re actively doing.”
She also notes that uncertainty can benefit some defendants: if full compensation becomes clearly available, more claims would likely follow. Currently, costs of proceeding can outweigh the benefits. As a result, many lawyers avoid wrongful pregnancy cases altogether. At Gluckstein, however, the approach is different.
“In a time when many areas of law are settled, this remains a significant gap,” Maguire says. “It’s important that anyone bringing a claim understands the risks — and has a willingness to challenge the law.”
“Change requires lawyers who are prepared to take those risks,” she continues. “We don’t shy away from difficult cases when we believe it’s the right thing to do.”
This article was produced in partnership with Gluckstein Lawyers
