Mom seeks justice in 'wrongful life' claim

2014-12-11 05:05
(File, Sapa)

(File, Sapa)

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This is not a sanctity of life debate - Down's syndrome case lawyer

2014-09-01 10:58

Mrs H is a mother who has brought a claim for damages for the "wrongful suffering" of her child born with Down's syndrome to the Constitutional Court. We speak to her legal representative, Romany Sutherland, who addresses the controversy around the case.WATCH

Johannesburg - The Constitutional Court will on Thursday deliver its ruling in a damages claim laid by the mother of a child born with Down's syndrome.

The mother, named Ms H to protect the child's identity, alleged that while pregnant, she approached the Kingsbury Foetal Assessment Centre, the respondents in the case, for a scan of her foetus to assess the possible risk of the child being born with certain congenital conditions.

She claimed the centre failed to interpret the scan correctly and negligently failed to warn her of the very high risk of her child being born with Down's syndrome.

Ms H said had she been made aware of the high risk she would have terminated the pregnancy.

She brought a damages claim in the Western Cape High Court on behalf of her child.

The centre raised a number of exceptions, most prominently that this type of claim, known as a claim for "wrongful life", was not recognised in South African law. The high court dismissed the claim.

In the Constitutional Court, Ms H argued that the common law should be developed to recognise a claim for "wrongful life", especially in light of the focus on children's rights enshrined in the Constitution and the Children's Act.

She contended her claim was aimed at recovering damages to support the life now being lived, one which involved total dependence and continuous care, rather than a claim on the basis that the child should not have lived at all.

She further submitted the centre had a duty to inform her of the risks associated with the birth of her child and that this duty extended to her child.

The centre argued the claim should not succeed because it owed no legal duty to the unborn foetus.

The respondent further submitted the claim should not be recognised in South African law because to award damages in this instance entailed comparing the value of never being born (in the event of a termination of pregnancy) with the value of living with a disability.

The centre contended that for ethical, moral, philosophical, and legal reasons, no such comparison could be made by the law.

Read more on:    constitutional court  |  cape town  |  health

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