Liability of medical practitioners to children born with congenital defects - a discussion of Stewart v. Botha : forum

Abstract

South African law recognises claims against medical practitioners by mothers whose children have been born with congenital defects, the so-called 'wrongful birth actions'. The basis of such claims is that if the medical practitioner had detected and informed the mother of the fetus's congenital defects, she would have terminated the pregnancy and the child would not have been born and suffered from the defects and caused her additional expense. The Supreme Court of Appeal in Stewart v. Botha (340/2007) [2008] ZASCA 84 had to consider whether a child born with congenital defects can himself or herself sue the medical practitioner for allowing the child to be born, the so-called 'wrongful life actions'. The court held that wrongful life actions should not be recognised in our law because the core of such cases is to require the court to decide whether it is preferable, from the child's perspective, not to have been born at all.