Lawyers are calling for new legislation after the High Court dismissed two claims of medical negligence causing “wrongful life”. The Australian Lawyers Alliance (ALA) says the Federal Government should consider law reform to enable severely disabled children to sue doctors who negligently allowed birth to go ahead.

In the latest example, a 25-year-old woman claimed damages for past and future medical care as well as pain, suffering and loss of income. Her mother’s doctor failed to diagnose rubella contracted during pregnancy.

The woman is deaf and blind and has required further care for mental retardation and spasticity since birth. The mother says she would have had an abortion had she known about the rubella and the associated risks.

The High Court ruled six to one against allowing the claim to proceed.

ALA medical commentator Bill Madden says courts have been unable to create a clear line on the issue and it is now up to the Federal Government to offer guidance.

“Just because it’s a difficult thing doesn’t mean the law shouldn’t make some allowance for damages awards where there has clearly been negligence on the part of the doctors resulting in severe disability,” he said.

The Insurance Council of Australia has declined to comment on the issue. Deputy CEO Dallas Booth says it is a matter for “social debate”.