Mother sues for son's suffering

A damages claim of R6-million for the "wrongful suffering" of a child born with Down's syndrome was heard in the Constitutional Court yesterday.

In a case that is the first of its kind, a Cape Town mother went to court on behalf of her Down's syndrome six-year-old son. The mother, who cannot be named to protect the child's identity, wants the Foetal Assessment Centre, in Claremont, to pay damages for, she says, failing to recognise that her unborn son was at "very high risk" of Down's syndrome.

Had she known the severity of the risk, she would have aborted the foetus, she said.

If the court, which has reserved judgment, rules in favour of the mother, it would open the door to a new basis for a claim for damages, "wrongful suffering".

In court papers, the mother accuses the centre of failing to warn her of the risk of her son having Down's syndrome.

Instead of the parents having to bear the costs of caring for the child, the Foetal Assessment Centre should be responsible, she argues.

"The reality of the situation is that [the child] exists and suffers due to the negligence of the defendant," her court papers claim.

The boy, who also has "serious and permanent cardiac defects", needs "total dependence and continuing care" and has "a life that includes suffering".

The Claremont centre, which opposed the application, said that such claims should not be allowed because they "compare the value of living with a disability with the value of never being born".

When the matter went to the High Court in Cape Town earlier this year the mother's application was dismissed.

The centre raised a number of issues, including that "wrongful life" claims were against public policy and were not recognised in South African law.

Citing case law, the High Court noted that such a claim - which would require a court to determine whether a child should have been born - "goes to the heart of what it is to be human, [something that] should not be asked of the law".

But in the Constitutional Court, to which the application went on appeal, the mother denied basing her damages claim on "wrongful life", instead making the novel claim of "wrongful suffering".

She said that, instead of considering whether her son should have been born, the court should determine whether the centre's alleged negligence should result in it paying damages.