Such a claim is only recognised in common law if made by a mother and not a child. The importance of this case is that it elaborates on the rights of a child in relation to events arising before birth and the obligation of a court to consider a child’s best interests when developing the common law. The decision also provides guidelines on how the common law can be developed to recognise a child’s claim for damages in respect of pre-natal medical negligence.

The case was an appeal from a decision of the Western Cape High Court, which dismissed an action for damages instituted by the appellant. The facts of the case are that the applicant was born with Down Syndrome in 2008. His mother claimed on his behalf that the Fetal Assessment Centre (the Centre) had negligently failed to alert her to the high risk that the child could be born with the syndrome. She claimed that had the Centre alerted her to this risk, she would have chosen to terminate the pregnancy.

The court observed that the present claim was not one for ‘wrongful life’ of the child but that the real issue was whether constitutional values and rights should allow a child in such circumstances to claim compensation for a life with a disability. Its duty, the court stated, was to decide whether the common law may possibly be developed to recognise such a claim.

In its judgment, the court emphasised section 39(2) of the Constitution, which requires that courts must promote the Bill of Rights when developing the common law. After examining foreign law on the matter, the court observed that claims for ‘wrongful life’ or ‘wrongful births’ have generally been rejected in countries where a woman’s right to choose is significantly restricted, abortion is prohibited, or limited to cases where it may save the mother’s life. In addition, the court stated that jurisdictions rejecting such claims also fail to recognise the interests of children. In contrast, the court noted, ‘wrongful life’ claims are often recognised in countries where a woman’s right to choose is least restricted and in judgments which stress the rights of children.

The court further stated the question of whether the present claim exists should be informed by the fact that our Constitution protects the interests of children and requires all law – including common law – to reflect constitutional values and rights. It held that the common law must conform to the values and rights of equality, dignity, and the right of children to have their best interests considered of paramount importance in every matter concerning them. The court clarified that in this case, these rights were applicable to a child at the time of birth.

The court then turned to examine whether the right of children to have their best interests given paramount consideration is consistent with the five elements – harm/loss, wrongfulness, causation, negligence and damages – required to establish the common law action for damages. In relation to the harm caused by the alleged negligence of the Centre, the court stated that in as far as the parents were concerned, the harm lay in two forms.

The first was the additional financial burden that they had to carry as a result of the birth of the child. Second, with regard to the right of every person to make decisions concerning reproduction and to security in and control over one’s body – sections 12(2)(a) and (b) of the Constitution – the harm also arose from the infringement of their right to exercise free and informed choice in relation to these rights. Such a claim would be based on the assumption that the mother would have chosen to terminate the pregnancy had she been warned of the potential disability before birth. The court further stated that a claim by a child for the same loss or harm caused to the parents may be possible if the parents fail to make a claim against a negligent medical expert. It stressed that although children do not suffer any constitutionally protected loss of choice, the possibility of such a claim was premised on the principle of the best interests of a child.

According to the court, the second element of wrongfulness (the infringement of a right) was possible to establish in a claim by a child. It found, among other things, that the best interests of a child should be given paramount consideration in pre-natal medical expert misdiagnosis that results in a child being born with a disability. The court held that where parents do not claim for medical expenses in those circumstances, the best interest of the child may require that the loss should not lie with the child. It stated that this implies that there may be a legal duty not to cause that loss and that the failure to do so might infringe the best interests of the child. The court rejected the Centre’s contention that the recognition of a child’s claim in such circumstances would violate the child’s dignity because it would imply that life with a disability is worth less than life without one. It remarked that a child’s claim would help a child to cope with a condition of life she was born with and make it possible for the child to live as comfortably as possible in the circumstances. This, the court continued, was the same as other claims brought before the courts for damages caused by physical injury resulting in disability.

On the element of causation, the court was of the view that although the misdiagnosis had not caused the disability, birth would not have occurred had the mother chosen to terminate the pregnancy if she knew of the risk. It noted that negligence on the part of the Centre would then have to be proved. Lastly, the court observed that damages claimed by a child in such a case could entail maintenance expenses. It added that the common law may have to be developed to enable a child to claim for intangible losses such as pain and suffering, which presently requires the infliction of bodily injury of the claimant.

In the final analysis, the court held that a child’s claim in the circumstances of the case was not inconceivable. However, it left a final determination of whether the child’s claim actually existed and had been proven, to the High Court.

The decision is significant for a number of reasons. It reiterates that the best interests of a child must dominate all matters that affect a child, including the development of the common law. This underscores sections 28(2) and 39(2) of the Constitution respectively. The case also provides greater clarification on the rights of children with regard to matters that arose before birth but which affect their lives thereafter. Moreover, it breaks new ground in medical negligence by recasting ‘wrongful life’ claims in a manner which is consistent with the Constitution and the rights of children in particular. While not answering decisively on whether the child had a claim in the circumstances, the judgment provides clarity on a previously murky aspect of law. It remains to be seen however, whether the High Court will find that a child’s claim in the circumstances of this case in fact exists.

By Esther Gumboh, Intern: Centre for Constitutional Rights