WRONGFUL LIFE − THE SCA RULES IN Stewart v Botha (340/2007) [2008] ZASCA 84 (3 June 2008)

André Mukheibir André Mukheibir

doi:10.17159/obiter.v29i3.12628

Abstract

For many decades now abortion legislation has (even before the era of abortion on demand) allowed a mother the right to have a foetus aborted which could be born with a physical mental defect resulting in the child being seriously handicapped. In the future it will be possible, not only to have defective foetuses aborted, but also to order our babies according to our own specifications. In the present case the plaintiffs' child was born severely handicapped because the parents were not informed of the fact that the foetus was suffering from congenital defects. The mother would, had she known about the defects, have had the foetus aborted. The mother was, however, ignorant of any defects and the child was born with severe disabilities. Apart from the claim instituted by the mother in her own name, the father instituted a claim on behalf of the son. The Supreme Court of Appeal rejected this second claim as being against public policy. It is this second claim that forms the basis of this note.

Highlights

For many decades abortion legislation has allowed a mother the right to have a foetus aborted which could be born with a physical mental defect resulting in the child being seriously handicapped
In the future it will be possible, to have defective foetuses aborted, and to order our babies according to our own specifications
Since the coming into operation of the Choice on Termination of Pregnancy Act a mother can have a foetus aborted in the first twelve weeks even if the continuation of the pregnancy poses no harm to either her or the child. Under these circumstances a wrongful life claim can hardly be said to be against public policy

Summary

Introduction

For many decades abortion legislation has (even before the era of abortion on demand) allowed a mother the right to have a foetus aborted which could be born with a physical mental defect resulting in the child being seriously handicapped. OBITER 2008 would be handicapped, would have chosen to have the foetus aborted Such a claim can arise as a result of the negligence of the obstetrician in connection with the circumstances surrounding the pregnancy or birth. (c) A wrongful life claim is brought by or on behalf of a severely handicapped child born as a result of medical malpractice, mostly in the form of incorrect advice under circumstances where the mother, had she received the correct advice, would have chosen for an abortion

Stewart v Botha

The arguments for and against wrongful life claims

Conclusion