16 March 2015 – Apex courts are tasked with making hard decisions. In H v Fetal Assessment Centre, the Constitutional Court of South Africa was asked to do just this. It was called on to determine whether a child, born with Down syndrome, has a claim against the medical centre that negligently failed to inform his mother of the high medical risks he faced as a foetus. But the Court did not draw an ultimate conclusion. It decided not to decide. It found that the claim “may potentially be found to exist”, and then charged the High Court (where the matter originated) with making the call. This is disheartening. We want certainty and courage from our courts, especially when the questions we ask of them are difficult.
In 2008 H, now a young boy, was born with Down syndrome. While pregnant, his mother had approached the Fetal Assessment Centre for tests to determine his health. She was not warned of the high risk that H would be born with Down syndrome. She says this was because the Centre was negligent and did not interpret the foetal scan correctly. Had she been told of this risk, she says, she would have terminated the pregnancy and H would not have been born. H brought a delictual claim against the Centre. His lawyers argued that the Centre owed a duty to him, in his own right, properly to advise his parents of the medical risks he faced.
Often termed “wrongful life” (rather unfortunately, because this implies that it is the life of the child, rather than the doctor’s negligent conduct, that is wrongful), this claim is brought by a child in his own capacity. The claim is on the basis that, but for the negligence of the medical practitioner, the child would not have been born to experience the syndrome and bear the associated medical costs.
Historically, a claim like H’s has not been recognised by South African courts. This is not to say that broadly similar claims aren’t recognised by South African law. Parents can claim for medical and care expenses, on their own behalf, under what are called “wrongful pregnancy” and “wrongful birth” claims. This includes when parents conceive a child against their wishes, because their doctor failed to perform sterilisation procedures properly, or would have terminated a pregnancy if they had been properly informed of the medical risks the child would face. So, H’s parents would certainly have had a claim against the Centre in their own right.
But H’s case is different. The claim, which he terms “wrongful suffering”, is for his own hardship, not that of his parents. It therefore has to surmount a number of additional hurdles. Our law requires H to prove that he was harmed by the Centre’s negligent conduct, and that this caused him a loss. Neither of those elements is easily established here. First, the doctor who failed to advise H’s mother of his medical risks did not actually cause the syndrome that H was subsequently born with. The doctor’s negligence meant only that H was born, rather than aborted; his mother has said that she would have terminated her pregnancy if she knew about the medical risks. For the same reason, it is difficult to say what the harm is to H.
This raises deep philosophical questions, not least because it seems necessary, to determine whether H has been harmed, for a court to weigh up whether non-existence is better than existence. If a court grants his claim, it risks implying that his life — and, possibly, the lives of all those living with disabilities – is less valuable than others: why else would his being born with a disability give him a right to sue the doctor for wronging him? This would be an anathema to a constitutional system that recognises the equal dignity of all.
It was for these reasons that the Supreme Court of Appeal roundly rejected the claim in Stewart. That Court found at the core of the claim of wrongful life is a—
“deeply existential question: was it preferable — from the perspective of the child — not to have been born at all? If the claim of the child is to succeed it will require a court to evaluate the existence of the child against his or her non-existence and find that the latter was preferable”.
The Supreme Court of Appeal decided against finding that non-existence was better. It concluded that this would disregard the sanctity of life and dignity of the child, and that the question falls outside of what should be asked of the law. So, the most immediate obstacle H faced was to show that Stewart was wrongly decided.
H did not manage to convince the High Court of this. When his mother brought the matter to the High Court on his behalf, the Fetal Assessment Centre excepted to the claim. An exception can be brought by a party, early in the proceedings, to quash a claim that has no legal merit. It allows cases to be disposed of quickly, and without the need for a long and expensive trial. The party who raises an exception basically invites a court to find that, even if the other party were able to prove every single factual allegation that he makes, his case would still fail to establish, as a matter of law, that his rights were infringed. The Centre argued that it is impossible for H to have a legal claim because the conceptual hurdles to it cannot be cleared.
The High Court upheld the Centre’s exception, thus dismissing H’s case. Baartman J held that he was bound by the Supreme Court of Appeal’s decision in Stewart. In any event, he said, constitutional norms require that the claim is not recognised — to do otherwise would treat the lives of disabled persons as worse than not living at all.
H appealed the High Court’s finding, asking the Constitutional Court to develop our common law in line with constitutional values, including equality, dignity and children’s rights. In a unanimous judgment by Justice Froneman, handed down in December 2014, the Constitutional Court avoided either recognising or rejecting the claim definitively. Instead, the Court equivocally found that in principle the claim “may potentially be found to exist”, and then sent the matter back to the High Court. The Constitutional Court also gave H permission to amend the arguments to better address the requirement, contained in section 28 of the South African Constitution (pdf), that the child’s best interests be of paramount importance in any matter concerning the child.
The Constitutional Court noted that the term “wrongful life” is both regrettable and wrong (although it did not take up H’s suggestion to use the term “wrongful suffering” instead). The term is also unhelpful, the Court found, because it misdiagnoses the central difficulty of these claims and gives rise to a paradox as it requires that existence be compared with non-existence.
Instead, the Court framed the legal issue as whether a child should be able to claim compensation for a life with disability. However, because the matter was brought as an exception, there was not enough evidence to decide even this legal issue, said the Court. It held that the complex factual and legal considerations should be thrashed out by the High Court.
This is not compelling. It is true that the matter is conceptually — and morally — complicated. But it is unclear what additional facts could cast light on what is centrally a legal and ethical question. In sending the case back to the High Court the Constitutional Court neutered the power of raising an exception, exactly because an exception is meant to isolate the core question of law, and put the facts to one side.
The Court’s recasting of the legal issue is also not entirely convincing. One of the difficulties with H’s claim is that there has been no physical harm to his person or property. Even more profoundly, it is hard to see that the child has suffered any wrong of any kind — at least, not without endorsing the pernicious suggestion that disabled lives are not worth living. The child would, after all, not have been born absent the doctor’s negligence. No similar difficulty arises for parental claims (for wrongful pregnancy or wrongful birth).
The Constitutional Court pointed to three reasons why claims like those for wrongful life could nevertheless be sustained: (1) the Centre has infringed the parents’ right to make informed reproductive choices; (2) the family must bear the financial burden, including medical expenses, unless such claims are recognised; and (3) the best interests of the child must be paramount. If a child cannot claim then, unless the parents themselves have been compensated, that child would not have financial protection. This, the Court found, would violate the child’s best interests and thus infringe his constitutional rights — which seems to be a fairly clear harm.
One way to understand this, noted the Court, is to view the medical expenses as a single burden, borne by parents and child. If the parents do claim from the medical practitioner in their own name, only they need to be paid damages. If they do not claim, then the medical practitioner must compensate the child. The judgment then goes on to emphasise that the best-interests principle should do much of the heavy lifting when determining whether a child has a claim.
But the best-interests principle cannot bear that weight. It does not help to explain why the child is harmed by the Centre’s negligence. As the best-interests principle is used in the judgment, it just reinforces the financial interest that the family has in being able to cover the medical costs. Put differently, the principle only shows that the child has an interest in compensation — not that he has been harmed by the Centre’s negligence. So, Reason (3) just becomes a restatement of Reason (2).
And by identifying this as the central harm, the judgment fails to show why the harm is to the child. Under this conception, the child’s claim basically amounts to the same as the parental claim; it effectively says that the child has a claim because he has an interest in his parents having a claim. But that is not enough. The parents’ claim already exists, and the judgment fails to explain why the child should also have a claim. This is clear when the judgment suggests that either the parent or the child can claim — not both — and that the child can only claim when the parent has not. Why would that be so if the child has suffered his own, free-standing wrong?
Ultimately the Court’s reasoning here is speculative because it never actually reaches a conclusion. We can only look forward to tracking the matter through the High Court, and hope that if the Constitutional Court does hear the matter again on appeal, it will give us some answers, rather than leave us with more questions.