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March 04, 2015

‘Wrongful life’ claim for child born with medical condition

This claim was brought on behalf of a child with Down’s syndrome for damages flowing from the doctor’s failure to inform the child’s pregnant mother of the high risk of it being born with this condition. The Constitutional Court had to determine whether the common law could be developed to recognise such a claim. H v Fetal Assessment Centre 2015 (2) SA 193 (CC).

This is a summary of what the court found:

Our common law at present does not recognise a child’s delictual claim for damages arising from a negligent pre-natal misdiagnosis in relation to congenital medical conditions or disabilities.  For most people the birth of a child and life itself are causes for celebration.  But that does not mean that the reality of being born into a life with disability should be ignored by the law...The child’s claim has been dubbed here and internationally as one for “wrongful life”.  It has been pointed out that this term is unfortunate and wrong.  And indeed it is.  The legal issue is not the “wrongful life” of the child, but whether the law should allow a child to claim compensation for a life with disability… When a medical expert negligently fails to inform the mother that her child will be born with a congenital disability, this deprives the mother of the opportunity to make an informed choice to terminate the pregnancy.  If the child is then born with a congenital disability and the parents suffer patrimonial loss in the form of an unwanted financial burden in maintaining the child, our law recognises that the mother or parents have a claim in delict against the medical expert.  Recognising a child’s claim asks us to take a step further.  What is the position if, for some reason, the mother or parents fail to make that claim against the negligent medical practitioner?

It must be emphasised that all this judgment determines is that a child’s claim may potentially be found to exist.  Whether it does so exist and in what form, needs to be decided by the High Court.  The High Court must still determine, if the claim is properly reformulated in delict, whether harm, wrongfulness, negligence, causation and damages have been established.  All this judgment lays down is that this must be done within our constitutional imperative that the decision must accord with constitutional rights and values, which must include considering the best interests of the child.  This also applies to any other manner in which the claim may be reformulated.

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