...who asks: how could its birth possibly give rise to an action for damages? But every baby has a belly to be filled and a body to be clothed. The law relating to damages is concerned with reparation in money terms and this is what is needed for the maintenance of a baby.’ Peter Pain J (II) Introduction ‘Wrongful Birth’ and ‘Wrongful Life’ are issues caught in a ‘legal quagmire’, as they exist between realms of purist legal principles and heated public policy debate. Much like the social taboos of abortion and euthanasia, at their core, they raise questions as to the value placed on human life. Moreover, this ‘value’ is represented by two sides of the coin in addressing the intangible ‘blessing’ of conception and existence, against the real fiscal burdens involved in adequately raising a child. In recent years several major cases have come before English and Australian courts to address issues in this field; however decisions have been far from unanimous, leaving the law in a state of ambiguity. This paper attempts to provide a line of clarity in respect to the developments of legal principles and public policy on these issues, by closely examining relevant case progression and wider academic debate. (III) Development of the ‘Birth Torts’ Unfortunately, the labels of ‘Wrongful Birth’ and ‘Wrongful Life’ are contentious even in their very existence; however it is critical to establish that ‘what is ‘wrongful’ is the negligence, not the birth’. Both issues refer to cases of...
Words: 1829 - Pages: 8
...This article is published in a peer-reviewed section of the Utrecht Law Review The Use and Influence of Comparative Law in ‘Wrongful Life’ Cases Ivo Giesen* 1. Introduction** 1.1. Comparable stories of great grief In 1993, a South African boy named Brian Stewart was born severely handicapped. He suffers from ‘spina bifida’, a congenital defect to the lower spine, which negatively affects the nerve supply to the lower limbs, bladder and bowel. He suffers from a brain defect as well.1 In 1994, a Dutch girl named Kelly Molenaar was also born severely handicapped. By the time she was two-and-half-years old she was diagnosed as being retarded, autistic, not fully grown, not able to walk or talk, suffering from heart disease, bad hearing and poor eyesight and she was not able, at that time, to recognize her parents. She had been admitted to hospital on nine occasions due to continuous crying, believed to be caused by pain.2 Comparable stories about severely handicapped children can be found in several other countries as well. Both Brian and Kelly were not supposed to have been born in the sense that their mothers would have chosen for an abortion had they known in time about the birth defects their children would suffer. Brian’s mother would have undergone a termination of her pregnancy had the obstetrician and gynaecologist she consulted detected any abnormalities in the foetus and advised her thereof. Kelly’s mother had asked the obstetrician she consulted to carry out some...
Words: 18173 - Pages: 73
...sufficiently close relationship to give rise to a duty of care. Reasonably foreseeable: - It is reasonably foreseeable that any carelessness on the part of the defendant could harm the plaintiff. Did the defendant’s act impart harm “that you could reasonably foresee would be likely to injure your neighbour”? (Donoghue v Stevenson). Incremental Approach: 1. type of relationship between the parties; a) the vulnerability of the plantiff, b) degree of control of defendant, c) special knowledge of the defendant of the plaintiff’s situation. 2. the type of loss or injury (physical, psychiatric, economic) 3. policy and; 4. physical, casual and circumstantial proximity may still be used (Kirby, Modbury triangle shopping centre pty ltd v Anzil) “proximity is the best notion yet devised by the law to delineate the relationship of negibour” Proximity test involves a notion of nearness in the relationship between the parties. as a principle stated in Rylands v Flectcher, “identifying the categories of case…rather than a test for determining whether the circumstances of a particular case bring it within such a category, either established or developing”. Sullivan v Moody applied tradtional common law approach “…although not determinative, is instructive”. Where duty of care will fail Policy(whether a duty of care exists. Public policy does not allow the following area, 1. legal practitioners in the performance of court work...
Words: 11108 - Pages: 45
