You Should Never Look a Gift Horse in the Mouth: One-Size-Fits-All Compensation in Wrongful Conception

This article reconsiders the House of Lords decision in Rees v. Darlington Memorial Hospital NHS Trust (2003) and the decision to award a conventional award of £15,000 in all cases of failed sterilisation resulting in the birth of an unwanted child. In so doing, it briefly recites the history of the Wrongful Conception action and the unique facts of Rees. It then goes on the consider the implications of two fundamental aspects of the judgment. Firstly, it looks at the 'conventional award' itself and considers the reasoning behind the award and the effect that it has on our understanding of (particularly women's) reproductive autonomy. Secondly, it analyses the rather 'unique' judgment of Lord Scott and his decision to evaluate these cases using the possessory analogy of an unwanted foal; particular focus is given to the notion of parental 'choice' in these cases and whether mitigation (i.e. abortion or adoption) can ever be considered "reasonable".

Giving guilt: the aneconomy of law and justice

The concept of guilt is seen here as debt beyond repayment. Following Derrida, the gesture of giving is placed in the economy of gift, an aneconomical gift that is not part of the exchange cycle. At the same time, guilt is linked to desire, the desire to give and to be free from guilt. Desire is described as the urge to cross over, to apprehend the non-identical and to give oneself away. In this reinforced crossing, where the improbability of giving conditions the improbability of reaching out, guilt and its impetus are found locked up in claustrophobic self-reference. For this reason, the author consults Kierkegaard and Luhmann whose contributions show that the gesture of giving acquires its relevance not so much on account of its recipient, but precisely because of the absence of such a recipient. The combination of an absent recipient and an absented giver fills the gift with an emptiness that can only be channelled back upon itself, in the autopoietics of guilt. This is exactly the fate of the law, which can deal with the guilty but never with guilt (in the above sense). In its attempt to give away guilt, the law attempts to become other than itself: justice. The improbability of crossing over becomes more obvious than ever.