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Landmark Decision Challenges Ban on ‘Wrongful Life’ Compensation Claims

In a landmark decision, a man in his 20s has won the right to compensation for a crime committed by his grandfather at the moment he was conceived. The ruling of the Upper Tribunal (UT) brings hope to thousands of people born with genetic disabilities after their mothers were raped or preyed on by family members.

The man’s grandfather, also his father, began abusing his mother when she was aged 11 and had subsequently been jailed for incest. DNA testing proved that the man was the product of that forbidden union. As a result, he had been born with grave disabilities, including severe learning difficulties, epilepsy and problems hearing and seeing.

The mother was awarded a payout by the Criminal Injuries Compensation Authority (CICA) but her son was refused a penny. Whilst CICA accepted that the grandfather had committed a crime of violence, it noted that his son was not a living person at the time. But for his grandfather’s wrongdoing he would not have been conceived or born and, as his disabilities were written into his genetic make-up at the instant of his conception, he could not be viewed as having suffered injury. It was said that to award him compensation would be to accept a claim for ‘wrongful life’ – a concept that had never been recognised under English law.

CICA’s arguments were accepted by the First-tier Tribunal. However, in upholding the man’s challenge to that ruling, the UT found that, in order to qualify under the criminal injuries compensation scheme, he did not have to be ‘a person’ when his grandfather committed his crime. The terms of the scheme also did not require that he had ever been in a pre-injured state.

The UT found that, in everyday terms and common parlance, the man had suffered injuries which were directly attributable to his grandfather’s crime of violence, which had exposed him to a 50 per cent chance of being born seriously disabled. The amount of his compensation had yet to be assessed, but is likely to be a six-figure sum.

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