Mother claims damages over Down's syndrome child

The Constitutional Court will hear an application on Thursday for leave to appeal a Western Cape High Court ruling against a damages claim by the mother of a Down's syndrome child.

Ms H alleged that, while pregnant, she approached the Kingsbury Foetal Assessment Centre (the respondent) for a nuchal translucency scan of her foetus in order to assess the possible risk of the child being born with certain congenital conditions.

She maintained that the respondent failed to interpret the scan correctly, and as a result negligently failed to warn her of the very high risk of her child being born with Down's syndrome.

She contends that had she been made aware of the high risk she would have terminated the pregnancy.

She brought a claim in the High Court on behalf of her minor child for damages resulting from the respondent's alleged failure to properly assess the high risk of abnormality in the foetus and to inform her of the risk associated with her pregnancy.

The respondent raised a number of exceptions, most prominently that this type of claim, known as a claim for “wrongful life”, was not recognised in South African law.

For the purposes of the exception procedure, the facts alleged by the applicant were assumed to be correct, even though they were yet to be proved.

Courts were called upon to determine whether there was a tenable claim in law on those facts. The High Court upheld this exception and dismissed the claim.

In the Constitutional Court, Ms H argues that the common law should be developed to recognise a claim for “wrongful life,” especially in light of the focus on children's rights found in the Constitution and the Children's Act.

She contends that this claim was aimed at recovering damages to support the life that was now being lived (one which involves total dependence and continuous care) rather than a claim on the basis that the child should not have lived at all.

She further submits that the respondent had a duty to inform her of the risks associated with the birth of her child and that this duty also extends to her child.

The respondent firstly argues that this case should first be heard by the Supreme Court of Appeal and therefore leave to appeal should be refused.

On the merits, it argues that the claim should not succeed because it owed no legal duty to the unborn foetus.

The respondent further submits that this claim was not, and should not be, recognised in South African law because to award damages in this instance entails comparing the value of never being born (in the event of a termination of pregnancy) with the value of living with a disability.

The respondent contends that for ethical, moral, philosophical and legal reasons, no such comparison can be made by the law.