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 Constitutional Court examined the following issues: (1) whether a child could submit a valid claim for damages against a medical expert for pre-natal misdiagnosis of a condition that deprived the child’s mother of the informed choice to terminate the pregnancy, and (2) whether the exception procedure was appropriate.
The Court recognized the importance of the exception procedure as a useful mechanism “to weed out cases without legal merit.” The Court stated that precedent indicated that questions on the development of common law should be decided after hearing all the evidence.
The Court then addressed the issue of whether the child’s claim could be recognized in law, a question which in its view was complex and had important normative implications. It rejected the use of the term “wrongful life,” because it suggested that courts would be involved in determining the paradox of whether non-existence was preferable to existence. The Court noted that the paradox had to be acknowledged because avoiding it masked value judgments that must be brought under the scrutiny of constitutional values and rights. The Court was aware that in the final analysis, a court determining the matter might still rule that a child could not claim. However, the point was that the matter raised issues that could not be addressed through the exception procedure. It held therefore that the proper procedure was for the High Court to hear the substantive matter and not to dispose of it prematurely without hearing the merits.
The Court then examined all the relevant facts to determine whether the child held a valid claim. It reviewed comparable foreign jurisprudence and noted that while some countries allowed parents to claim damages due to negligently-caused unwanted pregnancies, most countries did not address the issue of the child as a claimant. It also noted that the variability in treatment of claims on “wrongful birth” was due to the diverse constitutional, political, and social contexts within which the law of the country was created. From this analysis, the Court concluded that the South African legal culture required that the issue be determined with respect to constitutional values. The Court therefore affirmed that the law, including common law, must conform to the values of the Constitution of the Republic of South Africa, 1996, and the development of the law ought to promote the spirit, intent, and objectives of the Constitution. The Court observed that the values and rights that were particularly important included equality, dignity and the right of children to have their best interests considered of paramount importance in every matter concerning them.
The Court then considered whether common law could be developed to recognize the child’s claim, taking into account the principle of the best interests of the child, as well as other constitutional values. It examined this in relation to the elements that ought to be proven to sustain the claim, including: harm or loss, wrongfulness, negligence, and causation.
The Court recognized the difficulty of proving harm or loss in the absence of physical injury or harm to his person or property. The Court affirmed that legal harm was not only physical injury to the person or property, but included the added financial burden to the parents as a result of the birth of the child. In the context of constitutional rights, the Court said that the harm to the parents might be addressed as an infringement on the right of the parent to exercise free and informed choice regarding reproduction. However, the added financial burden remained a legal loss that had implications if the child was to be considered a potential claimant.
This harm or loss to the child would become apparent only if parents were unable to pursue their claim. The Court highlighted that even if in this circumstance the child suffered no loss of constitutionally protected choice, the best interests of the child principle required that the issue of loss for the child also be considered. The Court postulated that a court could find the medical expert liable for the child’s claim if for some reason the parents failed to file a negligence claim, for the same loss that he would have been liable to the parents.
Regarding the wrongfulness claim, the Court believed the best interests of the child principle implicated the medical expert’s misdiagnosis. If the parents had failed to claim, the best interests of the child principle would prevent loss to lie with the child. The Court’s view was that allowing loss to lie with the child might breach a duty not to cause such loss and invoked the rights of the child under Section 28(2) of the Constitution. However, for liability not to be indeterminate, either parents or the child may claim, but not both cumulatively. The Court concluded that it would not be inconceivable to impose liability with respect to the child where the parents failed to claim.
Regarding causation, the Court noted that pre-natal misdiagnosis would not be the cause of the disability itself, but of the birth of the child with a disability. It therefore considered the misdiagnosis as part of the chain of events that led to the birth that resulted in the loss.
The Court said that a plaintiff would have to prove negligence in accordance with established principles. The Court also said that the listed damages were already recognized in law and therefore potentially available to the parents.
In conclusion, the Court held that a child’s claim against a medical expert whose misdiagnosis resulted in the birth of the child with disability is a valid cause of action. The Constitutional Court therefore instructed the High Court to hear the substantive matter and decide the case with a constitutional values and rights lens.
The Court granted the appeal, and the order of the High Court was set aside and replaced with an order of leave for the plaintiff to amend the claim.
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.