The claim for wrongful life: Can the law of delict accommodate such claims or is the common law extended beyond its limits?

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Abstract

Wrongful life claims pose difficult ethical, moral and social questions. The law, and especially the law of delict, cannot shy away from these questions. While the law of delict and specifically the element of unlawfulness have to reflect the legal convictions of the community, at the same time one has to be mindful of the role it plays in preventing limitless liability. In this context, wrongful life and wrongful birth are juxtaposed, based on the recent judgment of the constitutional court in H v Fetal Assessment Centre 2015 2 SA 193 (CC). Even though this case was decided on exception, the court reflects a positive attitude towards wrongful life claims, which in itself is a first in South Africa. To date, the delictual elements of harm and wrongfulness provided a guard against the successful instigation of wrongful life claims. This article questions the constitutional court’s approach and investigates the consequences that allowance of these claims would entail for the law of delict specifically, but also for the broader society.

Firstly, wrongful life claims are differentiated from wrongful birth claims. The last-mentioned is a claim instituted by the parents of a child born with disabilities. The plaintiffs claim that the medical practitioner failed to inform them of the presence of genetic or congenital defects and therefore deprived them of the opportunity to make an informed decision about whether to abort the foetus or not. In such a case, the parents are limited to claiming damages for patrimonial damage and cannot institute a claim for non-patrimonial damage on behalf of their child. Wrongful birth claims are recognised in South Africa. Wrongful life claims, on the other hand, are claims instituted by a child born with disabilities. The child claims that were his or her parents informed of his or her disability, they would have terminated the pregnancy and consequently the child would not have to live a life with disabilities. Because wrongful life claims are instituted by the child, the child can claim damages for both patrimonial and non-patrimonial damage, leading to large sums of money potentially claimed from medical practitioners. Wrongful life claims are not yet recognised, but the recent judgment of the constitutional court paved the way for future litigants potentially to succeed with claims of this nature.

Secondly, the stance taken on what the role and function of the law of delict should be, is fundamental to wrongful life claims. Two notions of justice have evolved, namely corrective and distributive justice. Whereas corrective justice places an emphasis on the bilateral nature of the relationship between the wrongdoer and the victim, distributive justice functions multilaterally and takes broader considerations into account. In McFarlane v Tayside Hospital Board 2000 2 AC 59 the judge stated that “tort law is a mosaic in which principles of corrective justice and distributive justice are interwoven and in situations of uncertainty and difficulty a choice has to be made between the two approaches”. If wrongful life claims are to be accommodated by the law of delict, the emphasis seems to shift from traditional notions of corrective justice to distributive justice. The outcome of the constitutional court’s judgment seems to support this notion. This is, however, not in line with the traditional approach to the law of delict and has the potential to create a myriad of problems for the law of delict as we understand and study it today.

Through an analysis of two cases, Stewart v Botha 2008 6 SA 310 (SCA) and H v Fetal Assessment Centre, the application of the delictual elements are analysed and compared.Stewart v Botha concluded that the law of delict cannot accommodate wrongful life claims. The court stated that the question posed by these cases, namely whether it is better to live with a defect than not to live at all, is so fundamental regarding humanity that it should not be asked of the law. In H v Fetal Assessment Centre,however, the court accepted that the law of delict cannot accommodate wrongful life claims in terms of the current common law. Therefore, if these claims are to be allowed, the law of delict must be developed significantly to accommodate wrongful life claims. The court relied on the principle of the best interests of the child to circumvent traditional obstacles to this claim and suggested potential development of the law of delict. The court emphasised that courts have the power to develop the common law, even though the common law could be stretched beyond its traditional boundaries.

This article criticises the constitutional court’s approach by reliance on a number of arguments which attempt to place wrongful life claims in context. For instance, the legal culture is relevant and plays a fundamental role. The legal convictions of the community have undergone a change and now tend to focus on the quality of life, rather than the intrinsic and inherent value thereof. The recent acknowledgement of assisted suicide in Stransham-Ford v Minister of Justice and Correctional Services is an example of this. In this context it can be expected that wrongful life claims will become increasingly prominent. But if that is the case, this article criticises the application of the delictual elements and highlights practical considerations which the constitutional court does not seem to have taken into account.

The constitutional court identified the harm in the case of wrongful life as the potential financial burden on the child if the parents do not institute a wrongful birth claim. The problem is, however, that this type of harm is contingent and would materialise only if the parents do not institute their own claim. What would the court’s conclusion be if the parents instituted their own claim? Would the child not have suffered harm in such a case, despite the fact that the child has to live with the same disability? This approach to harm is inconsistent with the law of delict and creates the impression that the harm that the child suffers is conditional and would arise only in specific circumstances. If the court is satisfied that harm is conditional and that the claim could be allowed, the element of harm would have to be significantly developed in order to come to the conclusion that claims can be allowed in cases where there is potential harm, as opposed to the traditional approach that harm is the founding block of the law of delict. The court’s approach could also give rise to a situation where parents refrain from instituting a wrongful birth claim in order rather to have the option to institute a wrongful life claim, in order to be able to claim more. If this is the case, the development of the law of delict may be guided by financial considerations, which is not ideal.

The determination of the amount of damages to be awarded is also problematic. If the child’s current position has to be compared with the potential position the child would be in if his or her parents had decided to terminate the pregnancy, the determination of damages becomes impossible. This is the problem that the court in Stewart v Botha attempted to avoid. If the court in H v Fetal Assessment Centre approved the wrongful life claim, it implies that the traditional method according to which damages are calculated is also adjusted. It would be preferable if the court at least then provided criteria according to which this could be done and can be applied in future cases.

Wrongfulness is another traditional hurdle that the constitutional court seems to jump over. Reliance is placed on the notion of distributive justice to conclude that the medical practitioner is in the best position to carry the financial burden. Again, this is in contrast to the general principles of the law of delict.

Thirdly, the practical implications of allowance of wrongful life claims are considered, which strongly mitigates against the constitutional court’s approach. Wrongful life claims can easily be abused when parents have the benefit of hindsight. The large quantum that can be claimed can provide an incentive to institute such claims. The facts available to the medical practitioner at the time of consulting the parents are also never clear-cut and require a value judgement to be exercised. Awareness of wrongful life claims can induce parents to request more and more pre-birth tests to be conducted, which are harmful to both the mother and baby and by themselves cannot produce conclusive evidence of the baby’s health. Allowance of these claims also tends to imply that a life with defects is less valuable than a life without them. Defects can be viewed as unacceptable and thereby affect the dignity of many people living with disabilities.

Lastly, medical practitioners, especially gynaecologists and obstetricians, have to take out costly insurance in order to protect themselves against a flood of lawsuits. Over the last number of years this has led to a decreasing number of practitioners who can afford and are willing to provide this type of service. While both wrongful life and wrongful birth claims could make practitioners more aware of the standard of care that they provide, these could also lead to a situation where essential medical services are not readily available to pregnant mothers. The adverse effects in such a case weigh much more heavily than the potential gains.

The conclusion is that wrongful life claims pose very difficult questions and require significant development of the law of delict. The development required of especially the elements of harm, wrongfulness and the calculation of damages emphasise the need to take practical considerations into account. It appears that the constitutional court has failed to do so in H v Fetal Assessment Centre. At the same time, the law of contract, insurance and the possibility of a special fund that could be created to address these claims are unsatisfactory alternatives. The article suggests that wrongful birth claims, which are already recognised in South Africa and allow a relatively smaller quantum to be claimed, could strike a better balance than wrongful life claims by addressing the same factual scenario in a more satisfactory way.

Keywords: best interests of the child, causation, conduct, corrective justice, damage, defects, delict, disability, distributive justice, euthanasia, fault, justice, quality of life, strict liability, wrongful birth claims, wrongful life claims, wrongfulness

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