Abstract
In analysing 'wrongful life' cases, comparative law is used extensively. This article examines these wrongful life cases, especially in light of the contradicting outcomes in different jurisdictions across the world, with the Dutch Kelly case and the South African decision in Stewart v Botha as its main examples. I will test the hypothesis that it is not so much the outcomes and (more importantly) the arguments found elsewhere through the comparative law method that are decisive in highly debated cases like those concerning wrongful life, but that instead it is something else that decides the issue, something I would define as the cultural background of, or the legal policies within a tort law system.
Highlights
That we have been given a survey of where the law stands in several parts of the globe, and more importantly in order to be able to ascertain properly what sort of influence comparative law reasoning might have had in the jurisdictions under review, it seems wise to delve somewhat deeper into the heart of the substantive matter and to find some arguments and answers, albeit only tentatively, to the key questions raised above.[57]I will first (Section 3.2) deal with the legal questions surrounding wrongful life cases
In Friedman v Glicksman, Goldblatt, J. at the Witwatersrand Local Division upheld a wrongful birth claim under South African law, in line with the state of the law mentioned earlier, but he denied the admissibility of the wrongful life claim initiated by the mother in that case on behalf of her child.[53]
Introduction that we have been given a survey of where the law stands in several parts of the globe, and more importantly in order to be able to ascertain properly what sort of influence comparative law reasoning might have had in the jurisdictions under review, it seems wise to delve somewhat deeper into the heart of the substantive matter and to find some arguments and answers, albeit only tentatively, to the key questions raised above.[57]
Summary
The first instance court of Brussels has twice allowed a wrongful life claim under Belgian general tort law, quoting the French Perruche case,[34] and the Brussels’ Court of Appeal has recently allowed a claim as well (without referring to comparative materials, ).[35] The defendant hospital has lodged an appeal at the Belgian Supreme Court but that appeal is still to be heard This means that the position of the Belgian law in this regard is not entirely clear.
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