LPL4802 ASSIGNMENT 1 SOLUTIONS 2021
In South African law, a ‘wrongful life’ claim must be distinguished from a ‘wrongful birth’
claim which South African law does recognize. In wrongful birth parents have a claim for
maintenance and medical costs resulting from the ‘wrongful birth’ of a disabled child. 1 Such a
claim is normally based on medical negligence, as in the case wherein a doctor’s failure to
inform a pregnant woman of the meaning of an ultrasound scan which indicated possible Down’s
syndrome, thereby depriving her of the opportunity to decide whether to have the child or not.
Some scholars like Van den Heever identifies wrongful conception or pregnancy as an action
brought by the parents where a normal child was born following the negligent performing of a
sterilization procedure or incorrect advice given on contraception.
1
Potgieter JM et al, Law of Damages (Juta 2012) 68.
, A ‘wrongful life’ claim is not allowed in South African law according to Friedman v Glicksman2
and Stewart v Botha.3 The court in Stewart v Botha held that if the doctor had not failed to
inform the parents of the risk of birth defects to the potential child, the child would not have been
born at all to experience the pain and suffering attributable to his disability because the mother
would have elected to terminate the pregnancy. The Supreme Court of Appeal agreed with the
trial court that the claim on behalf of the child did not disclose a cause of action, the main reason
being that there was no duty on the respondents to ensure that the child was not born, and that to
recognize such a claim would be contra bonos mores. In Stewart v Botha, the Aquilian action by
a child for so-called ‘wrongful life’ was dismissed because the pivotal question of whether the
child should have been born at all, goes so deeply to the heart of what it is to be human that it
should not even be asked of the law.
There is debate regarding the claim for wrongful life. Neethling and Potgieter4 criticize the
Stewart v Botha asserting that the conduct of a doctor who negligently causes a child to be born
with serious disabilities should be regarded as wrongful. The them, although the doctor did not
cause the defects by positive conduct, it is clear that his omission caused a child to be born with
deformities. To weigh the child’s existence and non-existence against each other is irrelevant. In
our opinion it is undoubtedly in the child’s best interest to have access to the best possible
medical treatment for his condition. Therefore, the boni mores require that the doctor’s conduct
be regarded as wrongful and that he should be delictually liable. Justice demands that a child
should not face a life of pain, suffering and financial need that could have been prevented by a
doctor’s positive conduct. In this case justice is veiled behind the façade that this matter ‘‘goes
so deeply to the heart of what it is to be human’’ that the court cannot be expected to answer the
question of whether the child should not have been born. They argue that to be human implies a
life, as far as possible, free of deformities, pain, discomfort and suffering. Neethling and
Potgieter thus conclude recognition of an action for wrongful life would have gone a long way to
alleviate the child’s suffering and to vindicate the sanctity of his life and dignity. Mukheibir 5 also
2
Friedman v Glicksman1996 (1) SA 1134 (W).
3
Stewart v Botha 2008 (6) SA 310 (SCA).
4
Neethling J and Potgieter JM, Law of Delict (7 edn LexisNexis 2014) 69.
5
Mukheibir A, 'Wrongful life—The SCA rules in Stewart v Botha (340/2007) [2008] ZASCA 84 (3
June 2008)' 2008 Obiter 515, 520.
In South African law, a ‘wrongful life’ claim must be distinguished from a ‘wrongful birth’
claim which South African law does recognize. In wrongful birth parents have a claim for
maintenance and medical costs resulting from the ‘wrongful birth’ of a disabled child. 1 Such a
claim is normally based on medical negligence, as in the case wherein a doctor’s failure to
inform a pregnant woman of the meaning of an ultrasound scan which indicated possible Down’s
syndrome, thereby depriving her of the opportunity to decide whether to have the child or not.
Some scholars like Van den Heever identifies wrongful conception or pregnancy as an action
brought by the parents where a normal child was born following the negligent performing of a
sterilization procedure or incorrect advice given on contraception.
1
Potgieter JM et al, Law of Damages (Juta 2012) 68.
, A ‘wrongful life’ claim is not allowed in South African law according to Friedman v Glicksman2
and Stewart v Botha.3 The court in Stewart v Botha held that if the doctor had not failed to
inform the parents of the risk of birth defects to the potential child, the child would not have been
born at all to experience the pain and suffering attributable to his disability because the mother
would have elected to terminate the pregnancy. The Supreme Court of Appeal agreed with the
trial court that the claim on behalf of the child did not disclose a cause of action, the main reason
being that there was no duty on the respondents to ensure that the child was not born, and that to
recognize such a claim would be contra bonos mores. In Stewart v Botha, the Aquilian action by
a child for so-called ‘wrongful life’ was dismissed because the pivotal question of whether the
child should have been born at all, goes so deeply to the heart of what it is to be human that it
should not even be asked of the law.
There is debate regarding the claim for wrongful life. Neethling and Potgieter4 criticize the
Stewart v Botha asserting that the conduct of a doctor who negligently causes a child to be born
with serious disabilities should be regarded as wrongful. The them, although the doctor did not
cause the defects by positive conduct, it is clear that his omission caused a child to be born with
deformities. To weigh the child’s existence and non-existence against each other is irrelevant. In
our opinion it is undoubtedly in the child’s best interest to have access to the best possible
medical treatment for his condition. Therefore, the boni mores require that the doctor’s conduct
be regarded as wrongful and that he should be delictually liable. Justice demands that a child
should not face a life of pain, suffering and financial need that could have been prevented by a
doctor’s positive conduct. In this case justice is veiled behind the façade that this matter ‘‘goes
so deeply to the heart of what it is to be human’’ that the court cannot be expected to answer the
question of whether the child should not have been born. They argue that to be human implies a
life, as far as possible, free of deformities, pain, discomfort and suffering. Neethling and
Potgieter thus conclude recognition of an action for wrongful life would have gone a long way to
alleviate the child’s suffering and to vindicate the sanctity of his life and dignity. Mukheibir 5 also
2
Friedman v Glicksman1996 (1) SA 1134 (W).
3
Stewart v Botha 2008 (6) SA 310 (SCA).
4
Neethling J and Potgieter JM, Law of Delict (7 edn LexisNexis 2014) 69.
5
Mukheibir A, 'Wrongful life—The SCA rules in Stewart v Botha (340/2007) [2008] ZASCA 84 (3
June 2008)' 2008 Obiter 515, 520.
