© 2001 AFP / Didier Pallages

Both couples say they would have aborted their pregnancies had they known their child would be born with Down syndrome. They are claiming unspecified damages for economic loss, continuing costs of care of the children and “psychiatric injury”.

In 2003 the High Court ruled parents could sue in the event of wrongful birth. But NSW, SA and Tasmania have legislated against such claims. Maurice Blackburn lawyer Kathryn Booth says Victorians can sue for compensation for the continuing costs of raising a child to the age of 18, where the child was born as a result of negligent care.

In one case, the Royal Women’s Hospital is being sued by parents who say an early indication of Down syndrome was detected by ultrasound, but their doctor failed to detect the disability.

The father insists, "Don't get us wrong: we love our daughter. She's part of our family, and we treat her like gold".  The girl, now 4 years old, was born with heart, kidney and thyroid problems, can’t walk and needs help feeding.

In the other case, Western Health is being sued over a birth at Sunshine Hospital in 2007. The parents claim the hospital failed to “exercise reasonable care” of the mother and “provide (her) with the option of ante-natal screening”.

Western Health has denied any wrongdoing and argues the family failed to show it suffered a “significant injury” as defined by law.