Medical law is a highly specialized and technical area of the law. Some of the following concepts are noteworthy and should be borne in mind.
A claim for wrongful conception can be instituted by the parents of the child against the medical practitioner or the insurer for failing to perform an abortion or sterilization procedure properly which results in a healthy but unwanted child.
Wrongful birth on the other hand is when a child is born with Down syndrome. The parent or parents of the child would sue the medical practitioner or its insurer because such medical practitioner should have diagnosed the syndrome, or should have informed the parents and failed to do so which led to the parents not being able to terminate the pregnancy. In H v Fetal Assessment Centre, it was highlighted that there is an obligation on medical professionals to inform the parents that there is a fifty percent chance of the child being born with Down syndrome before the child is born to decide whether they want to have the child conceived. Practically there is also the option of testing or monitoring for abnormalities. The action would be based on a contract or delict.
Wrongful life is where a child is born with a defect owing to pre-natal medical negligence and where the claim will be instituted by the child himself or herself against the medical practitioner or insurer. The claim would be found in delict however wrongful life is not recognized as a claim in South Africa, unlike the United States and the Netherlands. A possible reason is asking whether the medical practitioner has a duty of care toward the unborn or herself.
In Stewart’s case, it was held that there is no such claim in South Africa which is based on the decision, in Friedman, the mother sued for wrongful birth on her behalf (patrimonial loss) and in the alternative, wrongful life on behalf of her kid (seeking general non-patrimonial loss) and claims for future loss of earning as her child would never be able to work so she wanted additional expenses (patrimonial) and also claim for pain and suffering (non-patrimonial). The Court stated there is no action of wrongful life as there is no duty of care to the unborn. It was also stated that Courts cannot quantify damage (no life vs a defective one) and it is against public policy to say that no life is better than a deformed one.
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