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Wrongful birth, Wrongful life and Wrongful pregnancy: What’s the difference and who can sue who: Part 3

In 1 and 2 of this series we dealt with wrongful pregnancy and wrongful birth, respectively. In part 3, however, we will specifically look at when a claim for wrongful life can be brought against a healthcare practitioner.

Wrongful life clarified

A wrongful life claim may arise when a child is born with a disability or abnormality. In 2014, the Constitutional Court in H v Fetal Assessment Centre dealt with a wrongful life claim.

Facts of H v Fetal Assessment Centre

The applicant, H, is a boy born with Down Syndrome in 2008. The applicant’s parents instituted an action on his behalf for damages against the Fetal Assessment Centre, the respondent. The applicant claimed that the respondent was negligent in failing to inform the applicant’s mother that the foetus had a high risk of being born with Down Syndrome, and had the applicant’s mother known, she would have chosen to terminate the pregnancy.

A claim for wrongful life, instituted by the child who alleges he was born with abnormalities due to the negligence of a healthcare provider, had not been successful in South African courts up to that point due to the lack of a cause of action which the law recognises. In South African law, it was seen as contrary to the values of our society to have a child institute a claim against a healthcare practitioner for essentially being alive. The child that institutes this claim is then saying to the court that because he is alive, he suffers and due to this suffering, he can institute a claim against the healthcare practitioner who was negligent. The negligence of the healthcare practitioner caused the child to be born and thus to suffer.

The court in these cases is being asked to answer the question as to whether it would have been better if the child had not been born at all. The answer to this question will lead to the follow-up question of: “Due to the damages suffered [as a result] of being alive, was this caused by the healthcare practitioner’s negligence?”

The applicant sought to develop the common law in order to allow for the recognition of a child’s claim for wrongful life. The court said that the legal issue is not whether the life of the child is wrongful, but whether or not a child should be allowed to claim compensation for a life with disability. Until this particular case had been decided by the Court, the previous courts had simply stated that due to the humanity of this type of question, the law ought not to be answering such questions.

There are several arguments to be made regarding the humanity of this type of question, as one is essentially asking the court to deliberate on the life of a human born with abnormalities or disabilities against the life of a human born without abnormalities or disabilities. The Court did not feel they were able to decide on whether or not a child born with abnormalities or disabilities should have been born at all. The Court did comment that a better term for a wrongful life claim, would be a claim of “wrongful suffering.” The question, then, would not be to answer the question of whether the child should have been born at all, but rather that the child should be compensated for a life of suffering, in order to live more comfortably and, in certain instances, to enable the child to live independently of their parents.

The Court considered foreign law on the topic in the context that the best interests of the child are of paramount importance in our law. The court sought, through the use of foreign law, to justify and change the common law to allow for this type of claim. The court stated that to allow this type of claim would allow a child with a disability not to become too dependent on their parents and would allow them to grow up comfortably “because their unique needs can then be fulfilled.”

The Court found that the common law (which didn’t allow a claim for wrongful life) should be developed. The Court found that a claim should be allowed for wrongful birth (as dealt with in part 2) OR wrongful life. In the Court’s view, allowing for a wrongful life claim does not in any way diminish the life of a person living with a disability, but states that this type of claim will allow for a child living with a disability to live more comfortably.

Who institutes this claim?

In a wrongful life claim, it is the child born with abnormalities or disabilities who is able to institute the claim.

What may be claimed

The costs of additional medical and other expenses may be claimed, which may be incurred due to the child’s disability.

What to be aware of

A claim for wrongful birth, where the parties instituting the claim are the parents, can be brought in the alternative to a wrongful life claim. In a case where the parents fail to institute a claim for wrongful birth, the child may institute a claim for wrongful life. This is allowed due to it being alleged, in such cases, that the mother would not have carried the child to term had she known about the disabilities. The fact that the mother would elect to terminate her pregnancy if there was the risk that the child would be born with an abnormality or disability, must at some stage have been made clear to the healthcare practitioner.

It is therefore of the utmost importance that medical records are kept for a period of at least eighteen years, excluding prescription.