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Heads of Damage in Wrongful Birth Claims: The Complete Financial Guide
This chapter is one of the most important in the whole guide, because it answers the question every parent asks: "How much compensation can we get?"
The answer is complex, because compensation in a wrongful birth claim is made up of many different heads of damage, each calculated separately.
The facts: compensation in these claims is among the highest in Israeli law, and can reach amounts of millions of shekels.
In this article we explain:
- The difference between compensation for the parents and compensation for the child
- Every head of damage in detail
- How each component is calculated
- Detailed numerical examples
- What affects the amount of compensation
- A comparison between types of claims
The General Structure - Two Types of Compensation
An Important Reminder: Wrongful Birth vs. Wrongful Life
Wrongful birth = the child's claim. The child sues because they were denied the right not to be born.
Wrongful life = the parents' claim. The parents sue because they were denied the right to choose - they didn't know about the defect and therefore couldn't terminate the pregnancy.
In Israel: only "wrongful life" is recognized. "Wrongful birth" was rejected by the Supreme Court.
The practical meaning:
- The parents receive compensation, including for the cost of caring for the child
- The child themselves does not receive compensation on this cause of action (though they may sue on other grounds if they were injured during birth)
- The claim is time-barred 7 years after birth
Compensation Is Made Up of Two Layers
Layer 1: The parents' own damages
- Pain and suffering of the parents
- Psychiatric injury
- Loss of the parents' earnings
- Expenses incurred by them
Layer 2: The cost of caring for the child
- Every expense related to the child's defect, for the child's entire life
- This is the largest component
Layer 1: The Parents' Own Damages
Head of Damage 1: Pain and Suffering of the Parents, With or Without Psychiatric Disability
This is the central emotional component.
What is included:
- The mental pain of discovering the defect (retrospectively)
- The grief over not being given the chance to choose
- The trauma of raising a child with a disability
- The harm to expectations and dreams
- The ongoing psychological pressure over the years
- The impact on the couple's relationship
- The impact on other children in the family
How is it calculated?
There is no formula. The court assesses based on:
- Severity of the defect - the more severe the defect, the greater the pain
- Degree of involvement - how involved the parents are in the care
- Duration of suffering - how many years the child lived
- Impact on the parents' life - whether it completely changed their lives
- Prior case law - what was awarded in similar cases
What is included in the psychiatric injury:
- PTSD - some parents develop PTSD
- Clinical depression - very common among parents of children with disabilities
- Anxiety disorder
- Difficulty functioning - at work, in the relationship, socially
How is it proven:
- A psychiatrist's expert opinion - mandatory
- Documentation of treatments
- Psychiatric medication
Important: proven psychiatric injury means higher compensation. So, if you feel psychologically unwell - seek treatment and document it. Not just for the money, but because you need the help.
Head of Damage 2: Loss of the Parents' Earnings
When a parent stopped working (or reduced their work) to care for the child.
Two sub-categories:
- Loss of past earnings: from the date of birth until today
- Loss of future earning capacity: if the parent still cannot return to work, and proves they will not be able to in the future
A complex calculation - depends on the parent's age, the remaining working years, and the child's needs (whether they will continue to require full-time care). The value depends heavily on salary and duration.
Head of Damage 3: The Parents' Direct Expenses
Expenses paid out of the parents' own pocket:
- Medical expenses incurred: medications, private doctor visits, medical equipment purchased out of pocket, travel to treatments
- Rehabilitation expenses incurred: private physiotherapy, private occupational therapy, private speech therapy
- Education expenses: private tutor, special private kindergarten, learning aids
- Home renovations and adaptations: ramps, a stairlift, bathroom renovation
- Travel expenses: to hospitals, to treatments, to consultations
Important: keep every receipt from the moment of birth.
Layer 2: The Cost of Caring for the Child - The Largest Component
This is the heart of the compensation in wrongful birth claims.
The legal logic: the parents did not choose to raise a child with a disability. Had they known, they would have terminated the pregnancy. Therefore, they are entitled to compensation for every additional expense caused to them due to the defect.
"Additional expense" = the difference between the cost of raising a child with the defect and the cost of raising a child without it.
Calculating the Baseline - "Cost of Raising a Healthy Child"
The compensation is usually reduced by the "cost of raising a healthy child," because the parents would have spent money on a child in any case. The "additional expense" is everything beyond that.
Head of Damage 4: Medical Expenses for the Child - Past and Future
Past medical expenses: every medical expense from birth until today caused by the defect - hospitalizations, surgeries, medications, tests, medical equipment. How it's proven: receipts plus the medical file.
Future medical expenses: an assessment of all the treatments the child will need for their entire life. Who assesses it: a medical expert plus an economic expert.
Examples by type of defect:
- Down syndrome: annual tests (heart, thyroid, vision); surgeries (if there is a heart defect): NIS 50,000-150,000; medication: NIS 500-2,000 per month
- Spina bifida: closure surgery at birth: NIS 100,000; orthopedic surgeries: 5-10 surgeries x NIS 80,000; neurosurgical surgeries: 2-5 x NIS 100,000; catheters and equipment: NIS 20,000 per year
- Severe cerebral palsy: surgeries: NIS 500,000-1,000,000; medication: NIS 3,000-6,000 per month; equipment: NIS 20,000-40,000 per year
Head of Damage 5: Rehabilitation and Treatment Expenses
Physiotherapy: Down syndrome - 1-2 times a week; spina bifida - 2-3 times a week; cerebral palsy - 3-5 times a week. Cost: NIS 350-500 per session.
Occupational therapy: similar to physiotherapy.
Speech therapy: critical for children with speech difficulties.
Psychologist for the child: as the child grows and understands their condition.
Additional treatments: hydrotherapy, hippotherapy, music therapy.
Head of Damage 6: Special Education
Children with disabilities need adapted education.
- Special education kindergarten (ages 3-6): usually funded by the state, but transportation, equipment and accompaniment add NIS 10,000-30,000 per year - total NIS 30,000-90,000
- School (ages 6-18): government special education - a funded school, but with associated expenses
- Adapted higher education (ages 18-22)
Head of Damage 7: Third-Party Care - Usually the Largest Component
Children with severe disabilities need close care for many years.
Calculation by life stage (example: severe cerebral palsy):
- Ages 0-6: 8-12 additional hours of help per day, at a cost of NIS 50-70 per hour. Example calculation: 10 hours x NIS 55 x 365 days = NIS 200,750 per year, and for 6 years: NIS 1,204,500
- Ages 6-18: 12-24 hours a day (depending on severity). Example calculation (12 hours): 12 x NIS 60 x 365 = NIS 262,800 per year, and for 12 years: NIS 3,153,600
- Ages 18-70: still dependent. Example calculation (16 hours): 16 x NIS 65 x 365 = NIS 379,600 per year, and for 52 years: NIS 19,739,200
But it's calculated at present value (deducting interest), because the money is given today and used for years to come. The present value is about 40-50% of the gross amount.
Summary of third-party care (severe cerebral palsy, present value):
| Life Stage | Amount (Present Value) |
|---|---|
| Ages 0-6 | ~NIS 700,000 |
| Ages 6-18 | ~NIS 1,800,000 |
| Ages 18-70 | ~NIS 8,000,000 |
| Total | ~NIS 10,500,000 |
This is the largest component of the compensation.
Head of Damage 8: Loss of the Child's Earning Capacity
The child, when they grow up, will not be able to work (or will work less) because of the defect.
Step A: what the child would have earned without the defect - usually the average wage in the economy is used, currently about NIS 11,000-13,000 per month.
Step B: what the child will earn with the defect - severe cerebral palsy: NIS 0 (cannot work); Down syndrome: NIS 3,000-6,000 (sheltered employment); spina bifida with normal intelligence: NIS 7,000-10,000 (can work, but with limitations).
Step C - calculating the difference, for example:
- Severe cerebral palsy (100% loss): difference of NIS 12,000 per month, 45 working years (ages 22-67). Gross: 12,000 x 12 x 45 = NIS 6,480,000. Present value: about NIS 2,500,000-3,500,000
- Down syndrome (60% loss): difference of NIS 7,000 per month. Gross: 7,000 x 12 x 45 = NIS 3,780,000. Present value: about NIS 1,500,000-2,000,000
Head of Damage 9: Housing Adaptations and Equipment
Housing adaptations:
| Adaptation | Cost |
|---|---|
| Ramps + railings | NIS 20,000-50,000 |
| Stairlift | NIS 80,000-150,000 |
| Accessible shower | NIS 20,000-50,000 |
| Door widening | NIS 10,000-30,000 |
| Treatment room | NIS 30,000-80,000 |
| Total | NIS 160,000-360,000 |
Special equipment:
| Equipment | Cost | Renewal |
|---|---|---|
| Wheelchair | NIS 20,000-80,000 | every 5-7 years |
| Medical bed | NIS 15,000-40,000 | every 10 years |
| Adapted vehicle | NIS 100,000-300,000 | every 10 years |
| Adapted computer | NIS 20,000-50,000 | every 5 years |
| Various aids | NIS 10,000-30,000/year | ongoing |
Total equipment for a lifetime: NIS 1,000,000-3,000,000.
Calculating the Total Compensation - Detailed Examples
Example 1: Down Syndrome
Scenario: a baby is born with Down syndrome, mild-moderate intellectual disability, a heart defect that was repaired, can study and work in sheltered employment, life expectancy 65 years, parents working at an average salary.
The parents' damages:
| Head of Damage | Amount |
|---|---|
| Pain and suffering - mother | NIS 400,000 |
| Pain and suffering - father | NIS 200,000 |
| Psychiatric injury (both) | NIS 200,000 |
| Loss of earnings, mother (3 years of unpaid leave) | NIS 360,000 |
| Parents' direct expenses | NIS 100,000 |
| Total parents' damages | NIS 1,260,000 |
The cost of caring for the child:
| Head of Damage | Amount |
|---|---|
| Medical expenses (past + future) | NIS 1,500,000 |
| Rehabilitation and treatments | NIS 2,000,000 |
| Special education | NIS 800,000 |
| Third-party care | NIS 2,500,000 |
| Loss of the child's earning capacity | NIS 1,800,000 |
| Housing adaptations + equipment | NIS 500,000 |
| Total child's expenses | NIS 9,100,000 |
After deducting the cost of raising a healthy child (-NIS 800,000): Total compensation: ~NIS 9,560,000
Example 2: Severe Spina Bifida
Scenario: a baby is born with lumbar-level spina bifida, paralysis in the legs, bladder and bowel problems, normal intelligence, can study and work sitting down but with difficulties, life expectancy 65 years.
The parents' damages:
| Head of Damage | Amount |
|---|---|
| Pain and suffering (both) | NIS 700,000 |
| Psychiatric injury | NIS 250,000 |
| Loss of earnings, mother (5 years) | NIS 600,000 |
| Direct expenses | NIS 150,000 |
| Total parents' damages | NIS 1,700,000 |
The cost of caring for the child:
| Head of Damage | Amount |
|---|---|
| Medical expenses (past + future) | NIS 4,000,000 |
| Rehabilitation and treatments | NIS 3,000,000 |
| Education (with support) | NIS 500,000 |
| Third-party care (partial) | NIS 3,000,000 |
| Loss of earning capacity (30% partial) | NIS 900,000 |
| Housing adaptations + equipment | NIS 1,200,000 |
| Total child's expenses | NIS 12,600,000 |
After deducting the cost of raising a healthy child (-NIS 800,000): Total compensation: ~NIS 13,500,000
Example 3: Fatal Genetic Disease (Tay-Sachs)
Scenario: a baby is born with Tay-Sachs, appears healthy at birth but from 6 months of age begins to deteriorate, dies at age 4, treatment during these years is very intensive.
Special characteristic: the child did not live for many years, so there are fewer long-term expenses, but the pain and suffering is immense, and treatment in the short years is very expensive.
The parents' damages:
| Head of Damage | Amount |
|---|---|
| Pain and suffering - immense (watching a child slowly die) | NIS 1,500,000 |
| Severe psychiatric injury (both) | NIS 600,000 |
| Loss of earnings (4 years) | NIS 500,000 |
| Total parents' damages | NIS 2,600,000 |
The cost of caring for the child:
| Head of Damage | Amount |
|---|---|
| Medical expenses (4 intensive years) | NIS 1,200,000 |
| Palliative rehabilitation and treatments | NIS 800,000 |
| Third-party care (24/7 for the last two years) | NIS 1,500,000 |
| Total child's expenses | NIS 3,500,000 |
Total compensation: ~NIS 6,100,000
Note: although the child only lived 4 years, the compensation is high, because the parents' pain and suffering is immense.
Factors That Affect the Amount of Compensation
1. Severity of the defect - the central factor. The more severe the defect, the higher the compensation: Tay-Sachs (fatal) - immense pain and suffering, short-term expenses; severe cerebral palsy - the highest compensation (long life + enormous expenses); spina bifida - very high; Down syndrome - high; mild Erb's palsy - relatively low.
2. The child's life expectancy. A child with a long life expectancy means higher compensation, because lifetime expenses mean more money.
3. The parents' age at the time of the claim. Younger parents - many working years remaining (higher loss of earnings) and many years of pain (higher pain and suffering compensation).
4. The parents' salary. Higher salary means higher loss of earnings.
5. The parents' position on terminating the pregnancy - affects causation. Parents who would not have terminated the pregnancy can only sue for damages related to not knowing (trauma, preparation), and do not receive compensation for the child's expenses - because if they had known, they would not have terminated it, so what is the damage? Only the late knowledge. This is one of the most disputed topics in case law.
6. Quality of the expert opinions. A good expert opinion means higher compensation. Invest in experts.
7. Quality of legal representation. An experienced attorney means higher compensation.
Deductions from the Compensation
Not all of the compensation is awarded without deductions:
- Deduction of National Insurance allowances: a child with a disability is entitled to a disabled child allowance, a nursing care allowance and more - and these amounts are deducted from the compensation. For example, a severe disabled child allowance of about NIS 5,000 per month, for 18 years = NIS 1,080,000, deduction of about NIS 1,000,000 from the compensation
- Deduction of state and Ministry of Education services: services the state provides for free (state special education, rehabilitation by the Ministry of Health, National Insurance assistance) are deducted from the compensation, because the parents will not need to pay for them
- Deduction of "cost of raising a healthy child": as noted, a deduction for the cost of raising a child without the defect
- Present value deduction: future expenses are calculated at present value, because the money is given today and will earn interest. The deduction is usually 30-50% of the gross amount
What Else Can Be Claimed?
- Interest on the compensation: for past damages (that have already occurred), interest can be claimed from the date of the damage until the judgment - this can add tens to hundreds of thousands of shekels in lengthy claims
- Legal costs: if you win, the court usually orders the defendants to pay costs - attorney's fees (partial) and expert expenses
- VAT on services: VAT (17%) is added to part of the calculated services
Comparison Between Claims - How Much Do People Actually Get?
| Type of Defect | Compensation Range |
|---|---|
| Mild Erb's Palsy | NIS 1,500,000-4,000,000 |
| Down Syndrome | NIS 6,000,000-12,000,000 |
| Moderate Spina Bifida | NIS 8,000,000-15,000,000 |
| Moderate Cerebral Palsy | NIS 10,000,000-20,000,000 |
| Severe Cerebral Palsy | NIS 15,000,000-35,000,000 |
| Fatal Genetic Disease (Tay-Sachs) | NIS 4,000,000-8,000,000 |
These are ranges - the specific amount depends on the circumstances of the case.
Tips for Maximizing Compensation
- Document everything from the moment of birth - every receipt, every approval, every doctor's visit. A treatment log (how many hours you dedicated, what you did) can add hundreds of thousands of shekels to the compensation
- Invest in good experts - a leading medical expert plus an experienced economic expert means higher compensation. Don't cut corners - it will pay off
- Start rehabilitation early - the earlier rehabilitation begins, the better the child develops, this proves the need for treatments and justifies the higher compensation
- Don't accept the first offer - the defendants' insurer will offer early, and it will always be low. Wait, negotiate, and hire a specialist attorney
- Document your psychological state - see a psychologist, document treatments, keep confirmations. Proven psychiatric injury means higher compensation
Summary - Key Points
✅ Remember:
- Compensation in a wrongful birth claim is among the highest in Israeli law
- Two layers: the parents' damages plus the cost of caring for the child
- Third-party care is usually the largest component
- Pain and suffering depends on the severity of the defect and its impact on the parents' lives
- Deductions: National Insurance allowances, state services, present value
- Document everything - every shekel you spent plus a treatment log
- Expert opinions - invest in them, it pays off
- An experienced attorney - the difference can be millions
The compensation is meant to allow you to care for the child for their entire life, and also to compensate you for the damage caused to you. Don't give up what you're entitled to.
Contact us for a free initial consultation on calculating compensation in a wrongful birth claim.
This article provides general information only and does not constitute legal or financial advice.
Yiron Festinger
Partner and Founder
Attorney Yiron Festinger is one of the most prominent attorneys in the fields of torts, medical malpractice, and insurance in the State of Israel. Throughout his 44 years of practice in the legal world, Attorney Festinger has accumulated extensive experience in handling complex cases and has been credited with numerous legal achievements and precedents.
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