H v The Fetal Assessment Centre

Earlier today in the Constitutional Court, Justice Froneman handed down a unanimous decision for the matter of H v The Fetal Assessment Centre (Kingsbury Foetal Assessment Centre). The initial application that was heard and dismissed by the Western Cape High Court was brought by H's mother, M, and is a claim for wrongful life. H was born in 2008 with Down Syndrome. In the papers, M alleges on H's behalf that she was not informed by the foetal assessment centre of the probability that H would be born with Down Syndrome. She alleges further that, had she been advised of the probability that H was to be born with Down Syndrome, she would have terminated the pregnancy. The present claim of "wrongful life" is one where H claimed damages from the foetal assessment centre for past and future medical expenses and general damages.

Previously, claims for wrongful life were not be recognised in South African law, as seen in the case of Stewart v Botha [2009] 4 All SA 487 (SCA). The court found that the question of wrongful life went to the heart of what it means to be human and that the question the courts were asked to answer was an existential one, as they would have to compare the fact that the disabled child exists to a scenario where the child would not have existed and found the latter to be of greater value. The Constitutional Court found that the real issue at hand was "whether our constitutional values and rights should allow the child, in the circumstances of the case, to claim compensation for a life with disability".

H's claim was initially dismissed by the Western Cape High Court in that the foetal assessment centre took exception to H's particulars of claim. They indicated that the claim was not recognised by our law. H appealed to the Constitutional Court directly, because appealing to the SCA would have been futile due to the case of Stewart v Botha. H, in his application to the Constitutional Court sought to have the common law developed to include cases of "wrongful life".

In deciding on the matter, the Constitutional Court found that there are indeed prospects of success for the claim and that the claim is of significant legal and constitutional importance. The court found that absolution should not have been granted by the High Court, as although an exception is taken against a plaintiff's particulars of claim where they do not disclose a cause of action, where the factual situation is complex, and where the facts are uncertain, "the interests of justice will often better be served by the exercise of the discretion that the trial Judge has to refuse absolution". The court placed substantial emphasis that children's rights should be of paramount importance when deciding on matters that affect the child, which the court felt had not been done in this instance.

Furthermore, the court found that the common law must be developed as a whole, in line with the normative considerations and underlying values of our Constitution. In a very pragmatic manner, the court suggested that should claims for wrongful life be allowed, they should not be cumulative with the child's parents’ claim for wrongful birth. The damages would be awarded for either wrongful life or wrongful birth. But if the child's parents do not exercise their rights to claims against the medical practitioner for wrongful birth, the child need not bear the burden and should also have a right to claim against the negligent medical practitioner.

The court also stated that recognising a claim for wrongful life would not imply that a life with a disability is worth less than a life without one, but rather it should be viewed as helping a child to cope with a condition that he or she was born with and making it possible for that child to live comfortably in the circumstances.

Although the court expressly stated that it did not have sufficient evidence and information before it to make a determination on the matter, the court does want the High Court and, possibly, the Supreme Court of Appeal to play a role in the development of the common law. The court therefore granted H's leave to appeal and 14 days in which the particulars of claim are to be amended. Although the road to recognising wrongful life claims is not over, and we will see what argument is placed before the Western Cape High Court, the Constitutional Court has acknowledged that there is a good possibility that our common law can be developed to include claims of this nature.

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