Applicant filed a claim against the Fetal Assessment Centre (“Centre”) for wrongful and negligent failure to warn his mother of the high risk that Applicant would be born with Down Syndrome. The mother initiated the suit on behalf of her son, claiming that if the Centre had warned the mother of the risk, she would have had an abortion. The child claimed special damages for past and future medical expenses and general damages for disability and loss of amenities of life. The Centre contended that the claim did not disclose legitimate cause of action under South African law. The Centre excepted to the claim as being “bad in law,” in not disclosing a cause of action that is recognized by South African law. The High Court found for the Centre and dismissed the claim with costs.

The decision of the Court hinged on its cognizance of the fact that the decision to terminate pregnancy involves making value judgments. When a woman makes a choice to terminate pregnancy, she is effectively choosing whether the potential developing life in her should continue to exist or not. South African law allows women to choose to terminate pregnancy up to 12 weeks of gestation. The reasons a woman may want to terminate pregnancy are varied, and include avoiding financial burden. The fact that the law allows people to terminate pregnancy on such grounds therefore implies that the law accepts certain value judgments that form the basis of the decision to terminate pregnancy.

If a woman can claim damages for “wrongful birth,” should the topic become a metaphysical issue simply because the child themselves is claiming damages for his or her own wrongful birth? The choice is rather about the continued existence or non-existence of the fetus. This is what raises the paradox because the termination of pregnancy is based on the perceived risk of having a child with a disability, which as the Court suggested, involves a value judgment. The Court seemed to have addressed this difficult issue by first basing its decision on the premise that the law implicitly accepts the value judgment that persons make when they choose to terminate pregnancy on various grounds. Secondly, the Court said that it was dealing with a situation when the child was already born, because prior to being born, the issues do not arise.

The Court’s analysis in developing the common law to allow the child to claim is important as it builds on the jurisprudence on application of human rights principles and values in determining issues impacting on the rights of the child. This was also particularly significant because in the process, the Court had to address the ethical-legal dilemma otherwise couched in the term “wrongful birth.”  It should be noted, however, that the Constitutional Court did not make the final decision on the matter, but only gave its opinion on how the High Court could approach the issue in the appeal.