By Duncan Wild on 11 December 2014

This is a case seeking to expand the South African common law to recognise a claim for “wrongful life”, or what the applicant calls “wrongful suffering”.  Historically, such claim have arisen where a medical professional is alleged to have failed to inform parents that there is a high risk that a foetus may be born with abnormalities, and had the parents been informed, they not have permitted the foetus to be born.  The applicant sought to cast the claim as one for “wrongful suffering”, seeking to emphasise that it is not claim with the basis that it would have been better for the child not be born, but that in failing to give the accurate information, the physician caused the suffering of the child once it was born. At present neither of these claims exist in South African law, and the applicant sought to have such a claim recognised.

The Constitutional Court did not recognise the claim for “wrongful life”, but indicated that there was the potential for such a claim in South African law, and so upheld the appeal against the High Court’s dismissal of the claim.  The Constitutional Court, however, found that the parties had not put argument before it on how the constitutional protection for the rights a child impacted the claim, and that it would not develop the common law to recognise this claim without all the facts before it.  Therefore, the Constitutional Court indicated that the applicant could amend their papers and reinstitute the case in the High Court which could then consider whether a valid claim existed and whether the applicant met the requirements for that claim.

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