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South African mother changes basis of lawsuit from “wrongful life” to “wrongful suffering” in the birth of her now-six year old son

by | Sep 2, 2014

 

By Dave Andrusko

gavel-409x400‘Wrongful life” suits are by their very nature bizarre.

But according to a South African newspaper, there is an additional twist to a lawsuit brought by a woman against the Cape Town-based Foetal Assessment Centre as it has moved its way through the legal system.

The lawsuit was first heard by a lower court –the Western Cape High Court in Cape Town. Here’s the background on the child, who is now six.

The Daily Telegraph reported that a October 2007 scan showed the baby was at a “’very high risk’ of having down syndrome, yet the staff did not inform Ms H of the risks. The centre argued in court it did not have a legal responsibility to the unborn child at the time of the assessment, arguing the court does not have the right to deny the ‘unquantifiable blessing of life.’”

Last April the lower court agreed with the Centre, saying the “remarkable resilience” displayed by disabled persons refutes the claim that their lives are “inferior to non-existence.” The court, citing case law, also concluded “that such a claim, which would require a court to determine whether a child should have been born, ‘goes to the heart of what it is to be human, [something that] should not be asked of the law,’” News 24 reported.

But Ms H (her name was not used, ironically, “to protect the identity of her child”) appealed her case to the Constitutional Court. There she “denied basing her damages claim on ‘wrongful life,’ instead making the novel claim of ‘wrongful suffering,’” Timeslive reported.

“She said that, instead of considering whether her son should have been born, the court should determine whether the centre’s alleged negligence should result in it paying damage.”

Categories: International