Controversial topic: Wrongful birth, wrongful life and wrongful pregnancy claims
As science, technology and medical care evolves, so too do the legal questions that arise in our courts. The mere mention of the terms “wrongful life or birth” and claims for “unwanted” children evokes strong emotions and opinions, whether inside or outside of the legal field. The South African courts have been exposed to limited cases regarding wrongful birth, pregnancy and life claims, yet these claims exist and though they are contentious they have a valid basis in law.
In South African law, medical practitioners may incur liability if they provide negligent care which results in harm to a patient. This harm is generally measured in financial terms, since the best a court can do to remedy a situation where there is no alternative, is to provide financial compensation. This extends to litigation against medical practitioners referred to as wrongful birth, wrongful life and wrongful pregnancy claims where an unwanted pregnancy or birth occurred.
The “wrong” in these cases is not the birth or existence of the child, but the breach of contract or duty which the practitioner owed to his or her patient.
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What are the differences?
As far back as 1996, in the case of Friedman v Glicksman, Judge Goldblatt provided definitions to make distinctions between the different scenarios and implications thereof.
- Wrongful pregnancy
Wrongful pregnancy claims result where parents sue a medical practitioner on their own behalf for damages due to a failed sterilisation or abortion procedure that resulted in the birth of an unwanted, healthy child. In other words, had the practitioner acted without negligence, there would have been no pregnancy. The damages claimed would be that in relation to the pregnancy only, that is the costs associated with the pregnancy and the non-patrimonial damages associated with it, for example the pain and the emotional trauma experienced. The purpose is to relieve a financial burden on the parents of the child, placed upon them by the conception and birth of an unplanned, albeit healthy, child.
- Wrongful birth
Wrongful birth is where the parents sue the medical practitioner on their own behalf for damages as a result of the medical practitioner failing to properly diagnose the defects or advise the parents of the potential birth defects of a child, resulting in the birth of an unwanted, disabled child. The parents in such a claim would argue that had they been properly informed they would have terminated the pregnancy.
The medical practitioner is then sued for damages relating to the maintenance of the child. In other words, all expenses which go together with raising a child, more so a disabled child, which would not have had to be incurred had the child not been born. A common example would be where a child is born with Down Syndrome or a severe disability, where the parents had the right to make an informed choice on whether to continue with the pregnancy or not. A medical practitioner has an obligation to inform parents of necessary tests, risks and options, albeit controversial.
- Wrongful life
Wrongful life claims are particularly controversial and the topic sparks debate on the sanctity of life, human dignity and equality. Wrongful life claims are similar to those of wrongful birth, however, in wrongful life suits the parents of the disabled child sue the medical practitioner on behalf of the disabled child for damages as a result of the disabled child’s birth. The child becomes the plaintiff, as opposed to his or her parents. The child argues that had it not been for the insufficient advice provided by the medical practitioner, the child would not have had to endure the pain and suffering related to his or her disability, as the mother would have terminated the pregnancy.
Currently, South African law only recognises actions for wrongful pregnancy and wrongful birth suits. Wrongful life is not a recognised claim and is seen to be a controversial point for our courts still to decide upon.
Finding the right attorney
Paul du Plessis Attorneys has successfully represented claimants in controversial and ground-breaking legal cases. If you have any questions on a claim due to suspected negligence, feel free to discuss your enquiry with us by sending an email to paul@pauldup.co.za or contact us on 012 809 1588.
Sources:
“Life goes on” 30 June 2014 by Hogan Lovells Publications at https://www.hoganlovells.com/en/publications/life-goes-on
“The claim for wrongful life: Can the law of delict accommodate such claims or is the common law extended beyond its limits?” 15 April 2016 by Marike Rabie at https://www.litnet.co.za/the-claim-for-wrongful-life-can-the-law-of-delict-accommodate-such-claims-or-is-the-common-law-extended-beyond-its-limits/
“An analysis of wrongful birth and wrongful life claims in South Africa” by T Tregoning 2016 at http://hdl.handle.net/2263/60105
H v The Kingsbury Foetal Assessment Centre (Pty) Ltd (4872/2013) [2014] ZAWCHC 61