NOTES / AANTEKENINGE 745

WRONGFUL LIFE CLAIMS UNDER SOUTH

AFRICAN LAW: AN OVERVIEW
OF THE LEGAL FRAMEWORK

1 Introduction
Is there any probability that life can be an injury? This is a piping-hot debate
among lawyers, doctors, academics, theologians, philosophers, and all
affected as well as interested parties. Wrongful birth and wrongful life claims
are often challenged all over the world. It is important to draw a clear
distinction between wrongful birth and wrongful life claims. Wrongful birth
claims are defined as prenatal negligence claims brought, by the parents of
a child who is born with birth defects or abnormalities, against a doctor who
negligently failed to identify, diagnose, or inform the parents of the child
about possible birth defects or abnormalities. By contrast, wrongful life
claims are defined as prenatal negligence claims that are brought on behalf
of the child who is born with birth defects or abnormalities, against a doctor
who negligently failed to identify, diagnose, or inform the parents of the child
about possible birth defects or abnormalities (Burns “When Life is an Injury:
An Economic Approach to Wrongful Life Lawsuits” 2003 52 Duke LJ 807).
The core of both claims is that, were it not for the misconduct of the
defendant (the doctor), the child would not have been born.
Moreover, the existence of wrongful birth claims can be based on two
realities, namely medical and legal realities. The medical reality relates to
the existence and presence of modern, state-of-the-art technology that
enables doctors to identify and diagnose children with birth defects or
abnormalities before birth. The legal reality is that such claim would make no
sense and would be impossible without lawful access to termination of the
pregnancy (that is, abortion) – otherwise, how could the wrongful birth have
been prevented (Duncan “Statutory Responses to ‘Wrongful Birth’ and
‘Wrongful Life’ Actions” 2004 14 Life and Learning XIV 3 3–4)?
In South Africa, if parents are informed that there is a possibility that their
child will suffer from a serious medical condition or a congenital disability
(birth defects or abnormalities), the mother has a choice not to give birth to
the child and to terminate the pregnancy in terms of section 12(2)(a) of the
Constitution and under the Choice on Termination of Pregnancy Act 92 of
1996. This means that wrongful birth claims under South African law are
possible, since the parents of a child born with birth defects or abnormalities
are entitled to claim patrimonial damages in circumstances where a doctor
negligently failed to give the necessary medical advice. However, the
position regarding wrongful life claims is different, and South African law has
denied any wrongful life claims, which means that a child, after being born
with birth defects or abnormalities, cannot institute a claim based on
wrongful life.
746 OBITER 2015

Wrongful life claims are a controversial issue, not only in South Africa, but
also worldwide; hence the aim of this analysis is, firstly, to give an overview
of current case law in South Africa, and of how wrongful life claims are
currently dealt with. Thereafter, the most recent case, H v Fetal Assessment
Centre, will be discussed, as well as the different schools of thought, the
positions in England, Germany and the Netherlands, and some possibilities
as to what the situation pertaining to wrongful life claims may be when the
High Court decides on the recognition or non-recognition of wrongful life
claims.

2 Current case law in South Africa

The cases of Friedman v Glicksman (1996 (1) SA 1134 (W)) and Stewart v
Botha (2008 (6) SA 310 (SCA)) are currently the benchmarks against which
wrongful life claims are measured in South Africa.

21 Friedman v Glicksman
In the Friedman case, the action was brought by the mother of a child who
was born with severe physical disabilities, against a specialist gynaecologist
who, allegedly had negligently failed to inform the mother that there was a
high probability that her child would be born with severe physical disabilities.
The mother asserted that, had she been properly informed by the specialist,
she would have chosen to terminate the pregnancy. The mother claimed, in
her personal capacity, for expenses pertaining to the maintaining and
upbringing of her disabled child. This included expenses for future medical
treatment, as well as other special expenses pertaining to the child. This
claim was based on wrongful birth, which is recognised under South African
law, and there were no issues regarding this claim. However, the mother
also brought a claim on behalf of the disabled child, claiming for general
damages for pain and suffering as well as for loss of future income. This
claim was based on wrongful life, which is not recognised under South
African law. The court in this case held that a claim for wrongful life was not
possible, based on the following reasons: firstly, such a claim would be
contrary to public policy as well as the feelings and views of the community;
secondly, such a claim would establish a precedent for disabled children to
sue their parents because their parents may have allowed them to be born
while being aware of the risks of the children being born with birth defects or
abnormalities (severe physical disabilities); and, thirdly, the doctors were not
to blame for the child’s severe physical disabilities and, because of this, the
only legal measure of damage would be the difference in value between the
non-existence of the child and the existence of the child with disabilities
(1140–1142).

22 Stewart v Botha
In the Stewart case, the action was brought by the parents of B who had
been born with severe physical disabilities. The first plaintiff, B’s mother,
claimed in her personal capacity in contract, alternatively in delict, for
damages in the amount of R2.66 million. The claim was based on past and
NOTES / AANTEKENINGE 747

future medical expenses due to B’s disabilities, expenses pertaining to

special schooling/education for B, as well as expenses for the maintenance
of B for the rest of his life, which was estimated to be 50 years (par 2 of the
High Court judgment; Stewart v Botha 2007 (6) SA 247 (C)). The second
plaintiff, B’s father, sued in delict in his personal capacity and on B’s behalf
for damages suffered by B in the amount of R2.41 million with regard to
future medical treatment that would be needed due to his disabilities, plus
the expenses regarding special tuition and maintenance for the rest of his
life (par 3 of the High Court judgment). The defendants excepted to the
wrongful life claim and argued that their alleged conduct was not unlawful
towards B, since they did not owe the unborn foetus, or B after his birth, any
legal duty to advise or inform his parents of the possible deformities and
abnormalities. The defendants also argued that the damages claimed were
not claims which B could bring, since he did not suffer any ascertainable loss
himself. The damages lay with B’s parents in their respective personal
capacities for the loss suffered by them as the parents of a child born with
disabilities. Moreover, the defendants averred that there was no cause of
action for wrongful life claims under South African law as alleged by B’s
parents, since, to allow such a claim, would require a comparison between
B’s existence in a disabled state and his non-existence, and, thereafter, a
quantification of the difference. Lastly, the defendants argued that a wrongful
life claim was appalling in law, contra bonos mores and against public policy
(par 11 of the High Court judgment; see also par 3 of the Supreme Court of
Appeal judgment; and Stewart v Botha 2008 (6) SA 310 (SCA)). The
Supreme Court of Appeal referred to several arguments and counter-
arguments regarding wrongful life claims, but came to the conclusion that
the crux of the case was the question whether the particular child (B) should
have been born at all (par 28 of the Supreme Court of Appeal judgment). In
other words, the main issue in this case was whether a comparison should
be made between the existence of B with disabilities and the non-existence
of B. The court concluded as follows (par 28 of the Supreme Court of Appeal
judgment; for discussions on the Supreme Court of Appeal case; see
Mukheibir “Wrongful Life – The SCA Rules in Stewart v Botha (340/2007)
[2008] ZASCA 84 (3 June 2008)” 2008 29 Obiter 515 516–518; and Human
and Mills “The Immeasurable Wrongfulness of Being: The Denial of the
Claim for Wrongful Life” 2010 1 Stellenbosch LR 67 70–71):
“The essential question that is asked when enquiring into wrongfulness for
purposes of delictual liability is whether the law should recognise an action for
damages caused by negligent conduct and that is the question that falls to be
answered in this case. I have pointed out that from whatever perspective one
views the matter the essential question that a court will be called upon to
answer if it is called upon to adjudicate a claim of this kind is whether the
particular child should have been born at all. That 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. For that reason in my view this court should not recognise an
action of this kind.”

The court, therefore, denied a claim for wrongful life. Such a claim is
contra bonos mores and the conduct of the medical practitioners was not
wrongful.
748 OBITER 2015

3 H v Fetal Assessment Centre (2015 (2) BCLR 127

(CC))
The Fetal Assessment case is a new case that caused heated debates on
whether wrongful life claims should be recognised or not under South
African law. It was emphasised in this case that the common law pertaining
to wrongful life claims and children’s rights might need further development
in order to recognise such claims.
One can say that the Fetal Assessment case focuses on the following
important aspects: it expounds and elaborates on the rights of a child with
regard to a cause of action occurring before birth, and on the Court’s
responsibility to consider the best interests of the child when developing the
common law. Accordingly, this case also gives guidelines on how the
common law can be developed in order to recognise wrongful life claims
regarding prenatal medical negligence.

31 Facts
The core matter in the Fetal Assessment case was whether wrongful life
claims should be permitted under South African law (par 1–2). The applicant
in this case was a boy who was born with Down’s syndrome in 2008. His
mother (the plaintiff) instituted a claim on his behalf in the High Court for
damages against the respondent, the Fetal Assessment Centre (hereinafter
“the Centre”). The claim was based on the alleged misconduct and negligent
failure of the Centre to inform the mother that there was a high probability of
the child being born with Down’s syndrome. It was alleged that, had the
mother been informed of the birth defect(s), she would have chosen to
terminate the pregnancy. Special damages for past and future medical
expenses, as well as general damages for disability and loss of amenities of
life, were claimed on behalf of the child. The Centre excepted to the wrongful
life claim and averred that such a claim was appalling in law, since it did not
disclose a cause of action recognised by South African law (par 3). The
exception was based on the assumption that the common law of delict at
present does not recognise a claim of wrongful life (par 4). The High Court
relied heavily on the decision in the Stewart case and upheld the exception
and dismissed the plaintiff’s claim with costs (par 5). The mother on behalf of
the child then sought leave to appeal directly to the Constitutional Court
against the High Court’s decision. The mother on behalf of the child argued
that an appeal to the Supreme Court of Appeal would be time-consuming,
since such court would also rely on the decision in the Stewart case (par 7).

32 Developing the common law

The applicant argued that, in the light of the aforementioned facts, the
common law should be developed in order to allow wrongful life claims. The
Court held that this was an issue of cardinal legal and constitutional
importance, since, on the one hand, the prospect of developing the common
law pertaining to wrongful life claims might be possible, but, on the other
hand, it might also not be possible. The Constitutional Court held that it was
NOTES / AANTEKENINGE 749

in favour of allowing the common law to be developed in the High Court and
the Supreme Court of Appeal. It also added that the outcome of this appeal
would permit the High Court and, if required, also the Supreme Court of
Appeal, to play a meaningful and substantial role in the further development
of the common law – of course, within the guidelines of the Constitutional
Court judgment (par 9).
The Court emphasised the importance of section 39(2) of the Constitution,
which stipulates that the “spirit, purport and objects of the Bill of Rights” must
be promoted when courts are developing the common law (see the case of
Carmichele v Minister of Safety and Security (Centre for Applied Legal
Studies Intervening) 2001 (4) SA 936 (CC) par 35). The Court also referred
to the cases of K v Minister of Safety and Security (2005 (6) SA 419 (CC))
and S v Thebus (2003 (6) SA 505 (CC)), where the overall purpose of
section 39(2) was explained (par 13):
“The overall purpose of section 39(2) is to ensure that our common law is
infused with the values of the Constitution. It is not only in cases where
existing rules are clearly inconsistent with the Constitution that such an
infusion is required. The normative influence of the Constitution must be felt
throughout the common law. Courts making decisions which involve the
incremental development of the rules of the common law in cases where the
values of the Constitution are relevant are therefore also bound by the terms
of section 39(2). The obligation imposed upon courts by section 39(2) of the
Constitution is thus extensive, requiring courts to be alert to the normative
framework of the Constitution not only when some startling new development
of the common law is in issue, but in all cases where the incremental
development of the rule is in issue.”

The Court held that, since the common law did not recognise a delictual
claim based on wrongful life, the development of the common law at issue
was of the kind where “a common-law rule is changed altogether, or a new
rule is introduced”. It held, further, that, when there is a need to decide
whether the common law should be developed, the following must be taken
into consideration: in some cases, there may be appropriate circumstances
present where the decision to develop the common law may be decided on
exception. In other cases, such a decision should only be made after all the
evidence is heard, which means that the decision can then be given “in the
light of all the circumstances of the case, with due regard to all relevant
factors” (par 14).
The Court pointed out that the legal issue in this case was not the
wrongful life of the child as such, but whether the law, with due consideration
of constitutional values and rights, should allow a child to claim
compensation for a life with disability. It held that the basis for determining
the viability of a wrongful life claim in this case lay in the fact that South
African law, including the common law, must conform to the values and
rights of the Constitution (in the Carmichele case, the Constitutional Court
stated that, although the common law did not recognise the plaintiff’s claims,
society and the boni mores commanded that the position should be
changed). Based on the outcome of the aforementioned case, it can be
argued that the common law pertaining to wrongful life claims is deficient in
its failure to recognise wrongful life claims, and that it should be developed in
order to be consistent with the values and rights enshrined in the
750 OBITER 2015

Constitution (Van Niekerk “Wrongful Life Claims: A Failure to Develop the

Common Law?” 2012 3 Stellenbosch LR 527 534–535). The specific values
and rights referred to are those of equality, dignity, and children’s rights with
particular reference to the best interests of children that are of paramount
importance in every matter concerning them (par 49). The Court made it
clear that, in this case, these rights were applicable to the child at the time of
birth (par 50). The Court therefore stated that one of the key role-players in
determining whether, or to what extent, a wrongful life claim will be
recognised is the kind of legal reasoning permissible in the legal culture or
tradition of a country or a country’s legal system (par 47).

33 Criticism of the Stewart case

The Constitutional Court, in its judgment, expressed criticism of the Stewart
case. The Supreme Court of Appeal in the Stewart case came to the
conclusion that a claim for wrongful life might only succeed if a court could
evaluate the existence of a child in a disabled state against the non-
existence of the child, which is almost impossible (par 21). In other words,
this means a comparison between life and non-existence. As a result of this,
the Constitutional Court indicated that such a comparison created
“insurmountable problems at various stages of the enquiry into the elements
or requirements of our law of delict – wrongfulness, causation, foreseeability
in negligence and in the quantification of damages” (par 20). The Court went
further and stated that, if one says that a medical expert’s negligence did no
harm to the child, there should be a reason for saying so, and the reason
given in our law and in many other jurisdictions is that harm can only be
established by comparing existence with non-existence. The consequence
hereof is that a value choice is hidden – a choice that is not supposed to be
hidden. The Court clearly stated that it is thus of great importance that such
a value choice should be openly acknowledged and squarely defended by
judges under the South African Constitution (par 22).
The Stewart case was further criticised, since it appeared that insufficient
recognition was given to the need to place the viability of the child’s claim
within the normative framework of the Constitution. It was therefore
necessary to examine foreign law, and the Court observed that the denial or
non-recognition of wrongful life and wrongful birth claims usually occurs in
countries where a woman’s right to choose is significantly restricted, or
where abortion is prohibited or limited to instances where abortion is the only
way to save a mother’s life. The Court also stated that it is evident that
jurisdictions rejecting such claims are also unsuccessful in recognising the
(best) interests of children. The Court noted that the situation differs in
countries where a woman’s right to choose is restricted to the minimum as
well as in judgments where the rights of children are emphasised and
protected. In these countries, wrongful life claims are often recognised
without difficulties (par 44–46).
Furthermore, the Court stated that the existing common law as espoused
by the Supreme Court of Appeal in the Stewart case did not consider
whether the recognition of a wrongful life claim would be in the best interests
of the child, nor did it take into account the principles of other rights
NOTES / AANTEKENINGE 751

contained in the Bill of Rights. The Constitutional Court held that, due to this,
a claim for wrongful life may not be inconceivable (par 52).
The Court then turned to an examination of the potential for the
recognition of wrongful life claims against the requirements of a delict and
stated the following (par 52):
“At first blush it might seem that the best interests of the child should be
considered in the enquiry, but this direct engagement with the right of children
to expect that their best interests will be considered paramount in any matter
that concerns them is said to fly in the face of the generally accepted
requirements of our law of delict. That contention needs to be examined
carefully in relation to each of those requirements.”

34 Requirements of a delict, and the best interests of the

child(ren)

341 Harm
With regard to the requirement of harm, the Court stated that the mother was
deprived of the opportunity to make an informed choice to terminate the
pregnancy. This was due to the medical expert’s negligence in not informing
the mother that her child would be born with a congenital disability. In
consequence of the medical expert’s neglect to inform the mother or parents
of this, the child was born in a disabled state, and the parents suffered
patrimonial loss in the form of an additional, unwanted financial burden in
maintaining the child. It is therefore clear that South African law recognises
that the mother or parents have a claim in delict against the medical expert.
This is known as a wrongful birth claim. However, recognising a child’s claim
(wrongful life claim) asks the Court to take a step further. The Court asked
what the position would be if the parents failed to institute a wrongful birth
claim against the negligent medical practitioner (par 62). It held that, even
though the child does not suffer the loss of any constitutionally protected
choice, the child will suffer financial loss (harm). This means that there is a
probability that a wrongful life claim may be recognised based on the best
interests of the child. To put it differently, the medical expert should be liable
to the child for the same loss for which he or she would have been liable to
the parents (par 63).

342 Wrongfulness
Wrongfulness means that there is an infringement of a right and the question
of wrongfulness is determined by public policy, which can be found in the
values that are treasured in the Constitution. The current and public policy in
respect of wrongful life claims can be summarised as follows: “To allow the
cause of action would bring into question the value of human life.” (Chürr “A
Delictual Claim Based on ‘Wrongful Life’: Is it Possible?” 2009 72 THRHR
168 172.) However, the Court held that part of the wrongfulness enquiry is to
determine whether there has been a breach in respect of a legal duty not to
harm the claimant, or whether a breach of the claimant’s rights or interests
has occurred. Section 28(2) of the Constitution expressly states that the best
752 OBITER 2015

interests of children are of paramount importance in every matter concerning

them. The Court stated that this includes the misdiagnosis by a medical
expert on prenatal matters that results in the child being born with birth
defects or disabilities. When parents do not institute a claim for the medical
expenses in the aforementioned circumstances, the loss will befall the child,
which means that it would be contrary to the best interests of the child. In
other words, the best interests of the child may require that the child should
not bear the loss. The Court was of the opinion that it would mean that there
may be a legal duty not to cause that loss (par 69). The Court also observed
that, in this case, the liability was not indeterminable, but determinable, since
either the parents or the child may claim (par 70).

343 Causation
The court held that, although the misdiagnosis did not cause the child’s
disability, the mother would have chosen to terminate the pregnancy had
she been aware of the disability. The Court also stated that factual causation
might be established, since the misdiagnosis was part of the sequence of
events that led to the birth. It held, however, that legal causation may be
absent owing to policy considerations, but that this is an issue that can
properly be dealt with only when all the facts are known and established at
the trial (par 74).

344 Negligence
The Court stipulated that negligence will still have to be proved by way of
general principles, but that the recognition of a wrongful life claim does not
have any effect or influence on the normal application of those principles to
the facts of each individual case.

345 Damages
The Court found it unnecessary to determine whether the child may have a
claim that goes further than patrimonial damages in the form of actual
expenses. It held that compensation for intangible loss does not form part of
the general principles of Aquilian liability. However, a claim for pain and
suffering and for loss of amenities of life is recognised under South African
law – this is a special kind of claim which requires the infliction of a bodily
injury on the claimant. It also held that there is no need to determine whether
the common law requires further development in respect of a child’s claim
for intangible loss, and also no need to establish the extent or limit of actual
patrimonial expenses that may be sought in a child’s claim (par 77).

4 The Court’s conclusion

The Constitutional Court concluded that a child’s claim for wrongful life may
potentially exist and that the High Court needs to decide whether such claim
does exist, and in what form. The High Court must also determine if a
wrongful life claim is properly reformulated in delict. In other words, it has to
be determined whether a delictual claim based on wrongful life is possible
NOTES / AANTEKENINGE 753

under South African law. The Constitutional Court emphasised that this must
be done in accordance with the constitutional imperative, which means that
the decision must correspond to constitutional rights and values. The best
interests of the child should also be taken into consideration (par 81).

5 Different schools of thought

There is a wealth of argument concerning the recognition or non-recognition
of wrongful life claims, but, despite this, the myriad of arguments can be
narrowed down to only “two types”, namely those that support the
recognition of wrongful life claims and those that are against the recognition
of such claims.
Those who support the recognition of wrongful life claims may argue as
follows (Feinberg Harm to Others: The Moral Limits of the Criminal Law
(1984) 99):
“If you cannot have that to which you have a [birth right] then you are wronged
if you are brought to birth. Thus, if the conditions for the eventual fulfilment of
the child’s future interests are destroyed before he is born, the child can claim,
after he has been born, that his rights (his present rights) have been violated.
Moreover, if before the child has been born, we know that the conditions for
the fulfilment of his most basic interests have already been destroyed, and we
permit him nevertheless to be born, we become a party to the violation of his
rights.”

Those who are against the recognition of wrongful life claims may argue
as follows (Steinbock Life Before Birth: The Moral and Legal Status of
Embryos and Foetuses 2ed (2011) Chapter 3 par IV):
“It is impossible for a person to be better off never having been born. For if I
had never been born, then I never was; if I never was, then I cannot be said to
have been better off. For to be harmed is to be made worse off; but no
individual is made worse off by coming to exist, for that suggests that we can
compare the person before he existed with the person after he existed, which
is absurd. Therefore, it is logically impossible that anyone is harmed by
coming to exist and wrongful life suits are both illogical and unfair in that they
require the defendant to compensate someone he has not harmed.”

However, for purposes of this analysis, it is also necessary to set out the
reasons why there are arguments against and in favour of wrongful life
claims.

51 Impossibility of calculating damages

One of the main arguments pertaining to wrongful life claims is that it is
impossible to calculate damages in the circumstances. However, in different
circumstances, courts have not had difficulties in calculating the damages. It
is therefore apparent that arguments regarding proof of damages and the
calculation of damages necessitate a critical and thorough evaluation.
Wrongful life claims are based on the recovery of patrimonial loss in the form
of actual expenses which a child has suffered in respect of medical
expenses, special schooling and maintenance, as well as compensation for
injury to the child’s personality interest and for the pain and suffering the
754 OBITER 2015

child has to withstand due to life in a disabled state. The Courts argue that
no damage has been suffered, since “the only life ever possible to [the child]
was a life in the handicapped state to which he was born”. The counter-
argument is that, if it were not for the negligence of the medical practitioner,
the child would not have been born, since the mother would have chosen to
terminate the pregnancy. The child (or the child’s parents) therefore suffers
financial loss, as well as a life with pain and suffering because of the
disabilities. It is important to remember that wrongful birth claims are
recognised under South African law and that a comparison is made between
life in a disabled state and no life. The Courts do not hesitate in these
circumstances to determine/calculate damages. Those in favour of wrongful
life claims argue that it seems to be irregular for Courts to allow parents to
claim damages in wrongful birth “circumstances”, but to deny the child the
right to damages in wrongful life “circumstances”. Moreover, it is argued that,
if there is no difficulty in calculating damages in wrongful birth claims, there
should also be no difficulty in calculating damages pertaining to wrongful life
claims (Human and Mills 2010 1 Stellenbosch LR 78–80).

52 Public-policy considerations
One of the arguments most commonly raised against the recognition of
wrongful life claims relates to the significance of emphasising the intrinsic
value of human life (Duncan 2004 14 Life and Learning XIV 3 16). A claim
based on wrongful life has not been allowed by South African courts, since
the Courts are convinced that such a claim is against public policy. To put it
differently, the current position in South African law is that wrongful life
claims are not permissible because existence, although with birth defects or
disabilities, can never be an injury cognisable at law. It has been said that
life – whether in a disabled state or not – is more valuable than non-life. One
can therefore say that those who are against the recognition of wrongful life
claims will also use the sanctity-of-life argument, which emphasises that life
is sacred (see the discussion of the Stewart and Friedman cases above; see
also Liu “Wrongful Life: Some of the Problems” 1987 13 Journal of Medical
Ethics 69 70; and Chürr 2009 72 THRHR 172). Furthermore, it is argued that
the Courts lack the competence to make a comparison between deformed
existence and non-existence (Burns 2003 52 Duke LJ 811–812).
However, the counter-argument is that it is too inflexible and rigid to lay
down as a matter of principle (and of substantive law) that life in a disabled
state can never be worse than non-life. Moreover, it is accordingly also too
rigid to argue that a child who is born with birth defects or disabilities can
never be an injury. Understood in this way, it means that life can be worse
than non-life and that a comparison between life and non-life seems to be
innately possible (Liu 1987 13 Journal of Medical Ethics 70).
The counter-argument with regard to the sanctity of life was also eroded
by the Choice on Termination of Pregnancy Act 92 of 1996, as well as in the
case of Christian Lawyers Association of South Africa v The Minister of
Health (1998 (4) SA 1113 (T) – for a discussion on this, see Chürr 2009 72
THRHR 172–173; and Boezaart in Boezaart (ed) Child Law in South Africa
(2009) 12–15). Moreover, it is argued that it is unjustifiable to disregard the
NOTES / AANTEKENINGE 755

sanctity-of-life argument in wrongful birth claims, but to regard such

argument in wrongful life cases as being of cardinal importance (Human and
Mills 2010 1 Stellenbosch LR 85).
There are also those who argue that, if a comparison between existence
and non-existence needs to be made, it is better to enter into life with mental
or physical disabilities than to have a state of non-existence, except possibly
in those extreme cases such as severe disability (Liu 1987 13 Journal of
Medical Ethics 70; and see also Blackbeard “Die Aksie vir ‘Wrongful Life’: To
Be or Not to Be?” 1991 54 THRHR 57 74). In these circumstances, one can
come to the conclusion that wrongful life claims should be recognised only in
extreme cases/severe disability cases. The question now is: What exactly is
meant by “extreme cases” or “severe disability cases” (this will be discussed
in paragraph 7 below).

53 Undermining the dignity of disabled persons

Those who are against the recognition of wrongful life claims argue that
these claims are pernicious, since it seems that the lives of disabled children
are worth less than the lives of healthy children. It is argued: “[I]f all life is
presumptively valuable, how can we say that what we really mean is that all
lives except for the lives of the disabled are presumptively valuable?”
(Duncan 2004 14 Life and Learning XIV 3 16 – emphasis in the original).
Further, it is argued that, especially in a country like South Africa where
extra emphasis is placed on the rights of disabled persons as well as on the
right to dignity of all persons, the nature of wrongful life claims implies that
disabled persons’ rights to life and to dignity are in serious jeopardy. The
counter-argument to this is that a wrongful life claim is not a reduction of a
child’s dignity, but rather a claim that acknowledges a child’s dignity. Instead,
the non-recognition of a wrongful life claim would reduce the dignity of the
child, since the child will live his/her life in a disabled state due to the
negligence of a medical practitioner merely because of the “non-existence”
argument (Mukheibir 2008 29 Obiter 520). It is therefore argued that a
wrongful life claim should be seen as compensation for, inter alia, the
encroachment upon a child’s right to dignity and bodily integrity. Thus, in
these circumstances, it seems that a child’s life is seen as an injury and a
pecuniary award should therefore be granted in order to remedy the injury
based upon principles of what is just and equitable. This can accordingly be
done without having to demean or degrade disabled children’s lives by
favouring no life over life (Human and Mills 2010 1 Stellenbosch LR 81;
Mũrĩithi “Does the Recognition of Wrongful Life Claims Rely on a Conceptual
Error?” 2011 37 Journal of Medical Ethics 433 436; and see also par 36 of
the Fetal Assessment case).
Another counter-argument is that the Children’s Act 38 of 2005 specifically
makes provision for a disabled child. Section 6(2)(f) states the following:
“All proceedings, actions or decisions in a matter concerning a child must …
recognise a child’s disability and create an enabling environment to respond
to the needs that the child has.”
756 OBITER 2015

The Children’s Act goes further and stipulates the following in section
11(1):
“In any matter concerning a child with a disability due consideration must be
given to – (a) providing the child with parental care, family care or special care
as and when appropriate; (b) making it possible for the child to participate in
social, cultural, religious and educational activities, recognising the special
needs that the child may have; (c) providing the child with conditions that
ensure dignity, promote self-reliance and facilitate active participation in the
community; and (d) providing the child and the child’s care-giver with the
necessary support services.”

It is therefore argued that children with disabilities are a priority of the

Children’s Act and that they should be assisted and supported as much as
possible in order to develop their potential, despite their disabilities.
Moreover, the recognition of disabled children, as well as the recognition of
their special needs and circumstances, promotes and accentuates the
human dignity of disabled children (Bosman-Sadie and Corrie A Practical
Approach to the Children’s Act (2010) 26; and Human and Mills 2010 1
Stellenbosch LR 87).

54 Wrongful life claims against mothers for not

terminating the pregnancy
Those who are against the recognition of wrongful life claims argue that such
claims would lead to claims against mothers who do not choose to terminate
their pregnancies, despite knowing that their children will be born with birth
defects or disabilities. The counter-argument to this is that a mother’s choice
not to terminate a pregnancy will not be characterised as wrongful, since the
Choice on Termination of Pregnancy Act stipulates that the right to terminate
a pregnancy is given to the mother (Mukheibir 2008 29 Obiter 520; and see
also par 36 of the Fetal Assessment case).

55 The practice of defensive medicine

Those who are against the recognition of wrongful life claims argue that to
take legal action against a doctor on the basis of wrongful life endangers the
health care and medical system and will have emotional, moral, as well as
financial consequences for the medical profession (Chürr 2009 72 THRHR
174). Moreover, it is argued that wrongful life claims may have a negative
impact on the attitudes of doctors, who, in order to avoid liability, may be
more inclined to advise parents to terminate the pregnancy in cases where a
child may be born with birth defects or disabilities. Doctors are not
omniscient and cannot guarantee perfect children. There are many
situations and circumstances where doctors would not breach the standard
of medical care, but children would still be born with birth defects or
disabilities. It is also argued that, although a doctor’s negligence caused the
child to come into being, the doctor’s negligence surely did not cause the
child to develop and suffer from birth defects or disabilities. To compel
doctors to pay damages for conditions they did not cause is thus
inappropriate and tactless (Burns 2003 52 Duke LJ 822). The counter-
NOTES / AANTEKENINGE 757

argument to this is that, when a medical practitioner unreasonably advises

parents to terminate a pregnancy, such advice could result in liability
(Mukheibir 2008 29 Obiter 520). For example, if a medical practitioner
advises in such a way that no other reasonable medical practitioner would
have advised, measures can be taken against such medical practitioner
based on professional misconduct.

6 Best interests of the child

The Court held in the Fetal Assessment case that the best interests of the
child pertaining to wrongful life claims should be taken into consideration
when deciding whether such claims should be recognised or not. The
Constitution and the Children’s Act specifically make provision for the best
interests of the child. Section 28(2) of the Constitution states that the best
interests of a child are of paramount importance in every matter concerning
the child. It is argued that the recognition of human rights, combined with the
best-interests-of-the-child standard, requires sensitivity and understanding
regarding the specific susceptibility of the disabled child and therefore
obliges the courts to evaluate a claim based on wrongful life as well as the
delictual elements required owing to this perception. There are, however,
three factors that are crucial in this regard (Human and Mills 2010 1
Stellenbosch LR 86).
Firstly, the Constitution lays the basis for a society where democratic
values, social justice and fundamental rights prevail. This means that
children are also regarded and acknowledged as bearers of human rights.
So, it is argued, when a wrongful life claim arises, it should be remembered
that the child is a bearer of the right to human dignity (s 10 of the
Constitution as well as s 6(2)(b), 11(1)(c) and 11(2)(b) of the Children’s Act),
the right to bodily and psychological integrity (s 12(2) of the Constitution),
and, of course, the right to life (s 11 of the Constitution). The right to life must
be construed on a multidimensional level with the aim of also including the
right to survival and development (Human and Mills 2010 1 Stellenbosch LR
86–87).
Secondly, the Children’s Act is of vital importance where fundamental
rights are concerned. Section 6(1)(b) of the Children’s Act states the
following:
“The general principles set out in this section guide all proceedings, actions
and decisions by any organ of state in any matter concerning a child or
children in general.”

Section 6(2)(a) stipulates:

“All proceedings, actions and decisions in a matter concerning a child must
respect, protect, promote and fulfil the child’s rights set out in the Bill of
Rights, the best interests of the child standard set out in section 7 and the
rights and principles set out in this Act …”

Section 7(1) states that, when the best-interests-of-the-child standard is

required by a provision of the Children’s Act, such standard must be applied
758 OBITER 2015

and several factors must be taken into consideration. Moreover, section 7(1)
should be read with section 28(2) of the Constitution.
Section 9 of the Children’s Act goes further and emphasises the best-
interests-of-the-child standard:
“In all matters concerning the care, protection and well-being of a child the
standard that the child’s best interest is of paramount importance, must be
applied.”

Thirdly, it goes without saying that the best-interests-of-the-child standard

is also protected and treasured as a fundamental right of the child. The case
of Minister of Welfare and Population Development v Fitzpatrick (2000 (3)
SA 422 (CC) par 17) emphasises the best-interests-of-the-child principle as
follows:
“Section 28(2) requires that a child’s best interests have paramount
importance in every matter concerning the child. The plain meaning of the
words clearly indicates that the reach of s 28(2) must be interpreted to extend
beyond those provisions. It creates a right that is independent of those
specified in s 28(1).”

It was submitted, in this case, that it is vital that the best-interests

standard be taken into consideration in wrongful life claims, especially where
the wrongfulness requirement pertaining to wrongful life claims is
considered. As a matter of fact, there are specific factors of importance
when the best interests of the child are taken into consideration, namely any
disability a child may have (s 7(1)(h) of the Children’s Act), the child’s
physical and emotional security, as well as the child’s intellectual, emotional,
social and cultural development. It was therefore argued that, when a Court
needs to consider the recognition or non-recognition of a wrongful life claim,
specifically with regard to monetary compensation for a child born in a
disabled state due to the negligence of a medical practitioner, it is of the
utmost importance that the court takes these three factors into consideration.
It was furthermore argued that the above provisions, as well as the best-
interests standard, make sufficient provision for developing and enhancing
the law in respect of wrongful life claims (Human and Mills 2010 1
Stellenbosch LR 87–88).

7 The position elsewhere

Section 39(1)(b) and (c) of the Constitution stipulates that, when the Bill of
Rights needs to be interpreted, a court, tribunal or forum must consider
international law, and may consider foreign law. Foreign law may therefore
be used in order to assist a Court in making decisions on the issues before
it. The Court may have recourse to comparative law, but is under no
obligation to consider it (par 28 of the Fetal Assessment case). The position
with regard to wrongful life claims in England, Germany and the Netherlands
will be discussed very briefly:
NOTES / AANTEKENINGE 759

71 England
Section 1(2) of the Congenital Disabilities (Civil Liability) Act of 1976 denies
the recognition of wrongful life claims. Children born after this Act came into
force are not permitted to institute a claim based on wrongful life. However,
section 1 of this Act permits a prenatal harm claim for a child if such child
was born alive but in a disabled state due to the medical practitioner’s act
which caused the child’s disability. Cases of naturally caused disabilities are
thus excluded. In the case of McKay v Essex Area Health Authority ([1982]
All ER 771 (CA)), a claim based on wrongful life was rejected. The Court
held, inter alia, that it was impossible to calculate damages, since such a
calculation would cause intolerable and insoluble problems (Giesen “Of
Wrongful Birth, Wrongful Life, Comparative Law and the Politics of Tort Law
Systems” 2009 72 THRHR 257 263).

72 Germany
In Germany, claims based on wrongful life are denied. The German Courts
are of the opinion that damages cannot be calculated and that there is no
direct responsibility to prevent the birth of a child who will probably be
disabled, since human life might appear inconsequential and worthless if
such a responsibility were to be accepted. A well-known case in Germany
was the 86 BGHZ 240 (1983) case where a woman had Rubella during her
pregnancy. The disease was negligently overlooked and, as a result of this,
the mother was unable to abort the foetus and a disabled child was born.
The court held that wrongful life claims based on the law of delict are not
permitted, since there is no infringement of a right of a child. The court
highlighted the fact that the medical practitioner did not cause the disability
of the child, but only prevented a possible abortion due to a wrongful
diagnosis. The court further held that the child should be appreciative to the
medical practitioner for being alive. The court also stated that it was
impossible to draw a comparison between life and no life. It was also
impossible to compare life in a disabled state with not being born at all. The
court therefore came to the conclusion that life can never be a legally
compensable injury, since recognising such an injury would infringe the
interests of all physically and mentally disabled persons (Hashiloni-Dolev A
Life (Un)worthy of Living: Reproductive Genetics in Israel and Germany
(2007) 122; and see also par 40 of the Fetal Assessment case).

73 The Netherlands
In the Netherlands, wrongful life claims are permissible. The well-known
Kelly case (C03/206 HR JHM/RM) is of importance. In this case, the court
granted the child cost of living, as well as additional costs pertaining to her
disabilities and non-pecuniary losses for her suffering. The court stated that
a life with disabilities is not worth less than a life without disabilities.
Regardless of a person’s disabilities, such a person can still have a dignified
and honourable life. Non-existence is not better than life in a disabled state,
but that does not mean that life in a disabled state is not challenging and
760 OBITER 2015

difficult to deal with. An award by way of damages will enable a child in a

wrongful life claim to improve his or her life and living conditions. In this
case, life can be a compensable injury (Giesen “The Use and Influence of
Comparative Law in ‘Wrongful Life’ Cases” 2012 8 Utrecht LR 35 39 and 46;
and for a detailed discussion on the Kelly case, see Mukheibir “Wrongful Life
Claims in the Netherlands – The Hoge Raad Decides – C03/206 HR
JHM/RM: case” 2005 26 Obiter 753–762).

8 Conclusion
From the above discussion, it is clear that the Constitutional Court in the
Fetal Assessment case was of the opinion that there is a possibility that the
common law may be developed. This means that there is then a possibility
that wrongful life claims may be recognised. The Constitutional Court
indicated that the fact that a child is born with disabilities or abnormalities
does not mean that such child should be ignored by the law (par 19). It
seems that the only conclusion one can come to is that the Constitutional
Court is in favour of wrongful life claims and that there must be some sort of
compensation for such a child.
However, the Constitutional Court did not decide whether such claims
should be recognised or not. It saddled the High Court with the enormous
task, that is, to determine whether a delictual claim based on wrongful life is
possible under South African law.
There is much speculation about what the High Court may possibly
decide. It is submitted that the High Court may decide on one of four
possibilities:
Firstly, that wrongful life is recognised under South African law based on
the arguments in favour of such claims. The end result would be that life can
be a compensable injury. Secondly, that wrongful life claims are still not
recognised under South African law based on the arguments in the Stewart
case, and that, despite the fact that the Constitution grants the necessary
liberty and permission to develop substantiated exceptions to common law
rules or even recognise new remedies for violation of rights, the limits of the
law of delict will be stretched beyond recognition for harm of this kind to be
recognised within its niche. The end result would be that life can never be a
compensable injury (see also par 66). Thirdly, that a wrongful life claim can
only be instituted if a wrongful birth claim fails or if no claim based on
wrongful birth is instituted. In other words, either the parents or the child may
claim, not both or cumulatively (see also par 70 of the Fetal Assessment
case). Fourthly, that wrongful life claims are recognised, but only in extreme
cases or severe disability cases. However, this means that the court would
be obliged to give specific guidelines (or definitions) on what is meant by
“extreme cases” or “severe disabilities”. The question that was asked in 5 2
above therefore remains unanswered until a court determines the meanings
of “extreme cases” and/or “severe disabilities”. If these meanings are
determined, the end result would be that, in certain (limited) circumstances,
non-life can be better than life and existence can be an injury.
NOTES / AANTEKENINGE 761

Nevertheless, some are of the opinion that the recognition of wrongful life
claims as a cause of action does not lie with the judiciary, but with the
legislature. If this view is adopted, it would mean that appropriate legislation
needs to be developed in order to provide for these claims – whether in all
circumstances or certain (limited) circumstances (Van Niekerk 2012 3
Stellenbosch LR 538).
Whether there are more possibilities and what the High Court will decide
remain open questions. However, when the court decides on this issue of
cardinal importance, the following should also be taken into account:
whether a child has the fundamental right to be born as a whole, functional
human being and whether such a claim does not endorse the idea that, if a
child is born with a disability, someone is to blame.
In the meantime, we will have to wait and see what the ultimate decision
is.

Chrizell Chürr
University of South Africa (UNISA), Pretoria