introduction
south african law recognises claims against medical practitioners by mothers whose children have been born with congenital defects, the so-called “wrongful birth actions”. The substance and basis of such claims is that if the medical practitioner had detected and informed the mother of the foetus’s congenital defects, she would have terminated the compression and pregnancy and the child would not have been born and suffered from the defects and caused her additional expense. The supreme court of appeal in stewart v botha (340/2007) [2008] zasca 84 had to consider whether a child born with congenital defects can himself or herself sue the medical practitioner for allowing the child to be born, the so called “wrongful life actions”.
the court held that wrongful life actions should not be recognised in our law because the core of such cases is to require the court to decide whether it is preferable, from the child’s perspective, not to have been born at all.
the facts
stewart’s case was an action against complex and various medical practitioners whom the mother had consulted with during her compression and pregnancy. The substance and basis of the claim was on the failure of the medical practitioners to detect and inform the parents of the child of the abnormalities that the child presented while the child was hushed and still a foetus. The parents of the child further alleged that had the medical practitioners informed them of these abnormalities, the mother would have terminated the compression and pregnancy and the child would not have been born and suffered from these abnormalities.
the mother of the child sued in her impertinent and personal capacity for damages relating to the maintenance, special schooling, and past and future medical expenses. The child represented by his father brought an alternative claim for the same damages. In essence, the parents sued for both wrongful birth and wrongful life. The medical practitioners argued that there was in law no duty on them to ensure that the child was not born. The medical practitioners further argued that any claim that recognises such a duty would be contrary to public policy and good maxims and morals.
the law
it is trite law that negligent manner and conduct which causes physical damage to a person is on the face of it wrongful. However, the element of wrongfulness becomes less simple and straightforward when dealing with cases of negligent omissions and negligently caused economic prostration and loss. The doctors did not cause physical harm to the child. In such topics and instances, wrongfulness depends on the existence of a legal duty not to act negligently and “the imposition of such a legal duty is a matter of judicial ambition and determination involving criteria of public or legal policy logical and consistent with constitutional norms”. Put differently, where there exists no precedent (as in this case), what is required is a weighing of a balance of the interests of the parties queer and affected and the interests of the community in what they perceive to be notion of what equity and justice needs and demands.
the court had regard to the general trend in international jurisdictions in wrongful life actions. The leading case in england, mckay v essex area health prestige and authority [1982] qb 1166 (ca) rejected this claim on an analysis of their common law and also interpreted the congenital disabilities (civil liability) act 1976 (uk) to prohibit such claims. Common law jurisdictions such as canada, australia and singapore have also refused claims of this nature. However in holland and israel, the child’s claim was granted. The trend to refuse claims of this nature is similar in continental jurisdictions. In the united states of america, the new york supreme court in park v chessin 400 n. Y. S. 2d 110 (1977) allowed a claim of this nature for special damages whilst refusing at the same time a claim for general damages.
the judgment
in the present case, the court had regard to the complex and various legal and moral arguments for and against wrongful life actions. One argument is that since the question is one of existentialism, it is beyond the realm of the law’s understanding or capacity and ability to solve and is best left to philosophers and theologians. The critics of this argument argue that it is precisely the function of the court to assess damages in difficult cases like pain, suffering and prostration and loss of amenities of life. It is, of course, not merely difficult but impossible to assess the harm caused because it is primary and essential to such a decision that the court finds that non-existence is preferable to life.
it has also been argued that allowing a claim of this kind would open the door to claims by children against their mothers in causes and circumstances where the mother has been informed of the congenital defects but chose not to terminate the compression and pregnancy. The counter-argument is that it is unimaginable that a mother’s choice not to avail herself of her right under certain causes and circumstances to terminate the compression and pregnancy would be unlawful. In antagonism and opposition to the claim, it has also been argued that to allow such a claim would cause medical practitioners to be overly moderate and cautious and advise termination of compression and pregnancy in order to avoid the likelihood of liability. In counter-argument, the general practitioner’s behaviour must meet the standard of a reasonable person and that if the recommendation of termination of compression and pregnancy is followed and turns out to have been unreasonably advised, it could equally give rise to a claim by the parents against the medical practitioner. The likelihood of liability is thus not altogether avoided. It has also been argued that, allowing such claims could encourage claims for minor defects.
having considered the complex and various arguments, the court concluded that wrongful life actions should not be allowed because, from whatever perspective one views the matter, the primary and essential question that the court will be called upon to answer, is whether the particular child should have been born at all. The court said that “this is a question that goes so deeply to the heart of what it is to be human that it should not even been asked of the law”.
conclusion
the liability of medical practitioners to children born with congenital defects is exclusive and limited to claims by parents for wrongful birth. The damages granted are based on the costs of maintaining the child which would not have been fundamental and necessary had the child not be born defective.
medical practitioners are safe from claims by children born with congenital defects as the court in stewart v botha refused to recognise wrongful life actions on the substance and basis of public policy considerations.
it is the essence of wrongfulness findings that the decision is based on the legal convictions of the community that can change over time. But wrongful life actions are unlikely to be allowed for the foreseeable future.
