CAN IT BE BETTER NOT TO BE BORN AT ALL THAN TO BE BORN? BY MILES CARTER

The terms wrongful birth and wrongful life seem somewhat incongruous.
 
The Supreme Court of Appeal (SCA) recently had to deal with a tragic case in which a child had been born with severe congenital defects, including a defect of the lower spine, which affected the nerve supply to the bowel, bladder and lower limbs, as well as a defect of the brain.
 
The parents instituted action against various medical practitioners whom the mother had consulted during her pregnancy, alleging that they were under a duty to detect any abnormalities in the foetus and to advise the mother of these abnormalities so that she would then have terminated the pregnancy.
 
Consequently, the claim went, the child would not have been born and would not have suffered from any of the severe physical handicaps from which he did suffer.
 
The mother claimed the damages relating to the maintenance, special schooling and past and future medical expenses arising from her son’s condition. It was accepted that this claim was good in law.
 
The father brought a claim, in the alternative, on behalf of the minor child for the same damages.
 
One of the doctors maintained that the claim brought on behalf of the minor child was not good in law; because:
 
·        There was in law no duty on a general practitioner to ensure that the child was not born; and
·        A claim that recognises any such duty would be contra bonos mores and against public policy.
 
There was no allegation that negligent conduct on the part of any doctor had caused any physical damage to the child. The damage was congenital.
 
In our law, negligent conduct which causes physical damage to a person or property of another is, on the face of it, wrongful. But the SCA has said that “(t)he element of wrongfulness becomes less straight forward... with reference to liability for negligent omissions and for negligently caused pure economic loss. In these instances, it is said, wrongfulness depends on the existence of a legal duty not to act negligently. The imposition of such a legal duty is a matter for judicial determination involving criteria of public or legal policy consistent with constitutional norms”.
 
The SCA said that where, as in this case, there existed no precedent, the process involved policy decisions and value judgments which “shape and, at times, refashion the common law … must reflect the wishes, often unspoken, and the perceptions, often dimly discerned, of the people”.
 
Taking a line through the SCA’s approach, what is in effect required is that, not merely the interests of the parties between themselves, but also the conflicting interests of the community must be carefully weighed and a balance struck in accordance with what the court perceives to be society’s notions of what justice demands.
 
The court then considered the terms “wrongful birth”, “wrongful pregnancy” and “wrongful conception”, all of which would relate, for example, to the situation where a hospital or a doctor had agreed and failed to perform a sterilisation, and where a claim then existed for the cost of maintaining and supporting the child that was thereafter born.
 
As against this was the present case, which involved what was commonly called a “wrongful life”. The court noted that although the use of the terminology was unfortunate and had been widely criticised, it was persistently used as a convenient reference.
 
Our courts have already recognised the claim of a mother against a medical practitioner for not having detected and informed her of the congenital defects in her foetus; one she would have aborted had she known. There the mother would have a claim.
 
But the SCA said that at the core of cases of the kind that were now before it was a different and a deeply existential question: was it preferable, from the perspective of the child, not to have been born at all?
 
If the claim of the child were to succeed, it would require a court to evaluate the existence of the child against his or her non-existence, and find that the latter was preferable. In other words, it would have to find that it was better for the child not to have been born, than to have been born at all.
 
The court considered the position in foreign jurisdictions, some supporting a claim for wrongful life and others rejecting it.
 
“When one considers the content of the duty owed to the child by the medical practitioners, the corresponding right, wrongfulness, harm or damages, the choice between life with disabilities on the one hand and non-existence on the other, is unavoidable. Making that choice in favour of non-existence not only involves a disregard for the sanctity of life and the dignity of the child, but involves an arbitrary, subjective preference for some policy considerations and the denial of others.”
 
In concluding that an action of this kind should not be recognised in our law, the appeal court unanimously held that from whatever perspective one viewed the matter, the essential question that a court would be called upon to answer if it was called upon to adjudicate a claim of this kind was whether the particular child should have been born at all.
 
“This is a question that goes so deeply to the heart of what it is to be human that it should not even be asked of the law.”
 
Miles Carter is a partner at commercial law firm Bowman Gilfillan