An analysis of wrongful birth and wrongful life claims in South Africa

Abstract

In our law, medical practitioners may incur liability if they do not properly exercise their legal duty towards a healthcare user and harm ensues.1 This negligent conduct of the medical practitioner will give rise to delictual liability if all the elements of delict are met: harm, conduct, causation, fault and wrongfulness.2 This dissertation intends to analyse the current legal position in South Africa regarding wrongful birth and wrongful life claims and specifically whether they constitute valid delictual claims, and will also look briefly at the global attitude towards such claims. Wrongful life claims are particularly controversial and the topic sparks debate on the sanctity of life, human dignity and equality. These claims are said to involve questions too existential for a court to be expected to provide answers.3 This dissertation aims to discuss the arguments both for and against allowing claims for wrongful life, within the context of the Constitution4 and the ever-changing boni mores.