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An examination of the concept of wrongful life and the legal action against the doctor

Caldwell, Natasha "Wrongful Life.

Unsurprisingly, the need for a judicial incursion into the depths of metaphysics and existentialism in order to determine the fundamental question of whether life can constitute actionable damage, combined with the inherent policy concerns which surround such a claim, has led to a widespread judicial reluctance to countenance the recognition of such an action.

This article was a research paper submitted for the Laws programme. I would like to acknowledge my supervisor Professor Stephen Todd for his helpful comments and advice given with regard to this paper. The claim has however been recognised in three state jurisdictions in the US, see Turpin v Sortini Cal. J NJ See also, Zeitzov v Katz 40 PD 85 Supreme Court of Harriton v Stephens 4 has undertaken a comprehensive examination of the viability of the action, and the decision provides an excellent platform from which to discuss the intrinsically intertwined issues of law and policy that the proposed claim involves.

However, it is apparent that the majority judgment must ultimately prevail. GCour de Cassation.

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In Harriton, the misconduct involved a failure to detect in-vitro exposure to rubella antibodies. In their denial of the claim the majority judgments were clearly influenced by the stringent requirements of legal principle. In contrast, Kirby J, as the sole dissentient, delivered a forceful judgment that was clearly impelled by the perceived imperatives of social justice. These are discussed in turn. Existence of a Duty of Care While the recognition of a duty to take care is the key element of an action in negligence,8 in wrongful life jurisprudence the issue as to whether a duty can be recognised has not proved to be a pivotal concern for a number of jurisdictions.

Her Honour simply held that a duty of care was unable to exist as the particular damage claimed by the appellant was not legally cognisable. However, contrary to what Stretton has argued,16 this finding in itself does not entail that the duty issue is concluded.

As the duty element of the negligence framework is inherently policy driven,17 the policy implications surrounding the recognition of the duty are of fundamental importance. These concerns will be examined shortly. In Harriton this difficulty was overcome 13 Ibid, at [69]—[70]. Hayne J also favoured this analysis, ibid, at []. The judicial treatment of causation has recently become marked by an increasingly liberal attitude,20 and thus this requirement of the negligence framework should not of itself provide an impediment to the recognition of the claim.

J at Ascertainment of Harm and Quantification of Damages It is clear law that in order to succeed in a claim for negligence, a plaintiff must have suffered legally cognisable damage because of the negligent conduct in question,26 and, if so, that his or her damages are to be quantified pursuant to the compensatory principle established in Livingstone v Rawyards Coal Co.

It is therefore unsurprising that these hurdles to recovery proved to be insurmountable for the majority in Harriton. At the heart of the wrongful life action lies the premise that life itself is capable of being recognized to be a legal injury. The ethical implications of such an assertion have proved to be troubling for many judiciaries. J 22 NJ at 31 per Weintraub J.

As acknowledged by Crennan J, the evaluation of damage for a wrongful life plaintiff would logically require a comparison between a life with disabilities and non-existence.

Sole reliance on the rigid parameters of the negligence framework in order to justify rejection of the claim was also evident in the judgements of both Hayne and Callinan JJ. One can validly question whether identifiable loss has occurred if the limitations of human knowledge mean that the purported damage is unable to be measured.

Owing to the human inability to evaluate and comprehend the concept of non-existence, an intrinsic uncertainty exists as to whether it can confidently be asserted that an injury has occurred. How can a comparison ever assuredly be made when one of the comparators is a concept of which no knowledge exists? Such difficulties do not lend themselves to an easy resolution.

These particular complexities were briefly dealt with by Kirby J in his wider discussion as to the quantification of general damages. Clearly influenced by the apparent injustices occasioned by the refusal to recognise the action,35His Honour was undeterred by the perplexities raised by the recognition of damage.

Following this reasoning of Kirby J, it is apparent that the success of the action would require judicial acceptance that non-existence can, in certain circumstances, be a preferable alternative to a life of severe disabilities. This proposition clearly faces the same logical hurdle that, in the present fields of intellectual understanding, such an assertion can only ever be based upon pure hypothesis. However, proponents of the action vigorously argue that such a contention is by no means foreign to judicial thinking.

In particular, it has frequently been asserted that such a judicial determination is often required to be made in the discontinuation of medical treatment cases. However, as noted by Crennan J, this postulated analogy is inherently misconceived.

Medical Treatment [] Fam 33 CA at It can be accepted, as was acknowledged by Crennan J, 43 that the general difficulty of quantifying intangible loss should not of itself justify rejection of a claim. Seemingly influenced by the reasoning of the US cases that have allowed the claim, Kirby J proposed that special damages would be recoverable as the appellant would not have had any economic needs if the respondent had exercised reasonable care.

At first glance the award of special damages does appear desirable, as the comparison between life with disabilities and non-existence would be avoided. In contrast to the approach of the US state jurisdictions, that have only been prepared to award special damages in their recognition of the wrongful life action,49 Kirby J was undeterred by the difficulties surrounding the award of general damages.

Wrongful birth

It can be accepted that the courts are frequently compelled to engage in a rough 48 See for example, David H. For a contrasting view see Kenneth A. Proponents of the claim have confronted this troubling dilemma in a variety of ways. Two justices of the Israeli Supreme Court, allowing the claim in Zeitzov v Katz, 55 bypassed such complexities through the comparison of the disabled plaintiff with a hypothetical healthy child.

Though such a construct has received some limited academic support,56 it is apparent that such judicial reasoning is inherently flawed. Such an option clearly could never have been possible for a wrongful life claimant. It is accordingly proposed that, if the burdens of life outweigh the benefits, damages can be duly quantified. The assignment of the value of zero to the state of non-existence is faced by the recurring logical quandary that, in the present state of human knowledge, any value placed on non-existence is a quintessentially arbitrary figure.

The enigma that is non-existence defies any such haphazard attempts at valuation. Therefore, it must be concluded that the judiciary will be simply unable to quantify the wrongful life 53 See Fleming, above n 15, at ; Teff, above n 37, at ; Jackson, above n 9, at Should the impaired newborn be entitled to sue?

For a slight variation of this argument which posits that any value can be assigned to non-existence, see, for example, Grainger, above n 6, at ; Teff, above n 37, at The determination as to whether damage is able to be legally recognised and quantified can therefore be formulated as a struggle between the rigours of legal principle against the ideals of social justice.

The inability of the proposed action to fall neatly within the parameters of the established negligence framework does indicate that the tools of the common law are ill-equipped to deal with such a claim. We must then question whether such an extension, which would create an undesirable incoherence in the law, could be validated by the supposed injustices which denial of the claim effects.

  1. For discussion of such an occurrence in the US, see Pace ,above n 48 at This Court can find no opinion in which a New Jersey state court has addressed the ability of a father, alone, to assert an independent claim for wrongful birth.
  2. Patient-doctor relationship[ edit ] The plaintiff must establish the existence of a patient-doctor relationship by showing that the doctor gave the plaintiff a medical diagnosis or medical advice.
  3. It is these areas which recent cases have explored and no doubt we will continue to see cases do so. Application of the Feres Doctrine to the Facts of This Case The Government contends that the Feres doctrine precludes each of the three Plaintiffs in the underlying suit from recovering directly from the Government, and therefore, based upon the Supreme Court's decision in Stencel, also precludes them from recovering indirectly against the Government through a third party claim for indemnification or contribution.
  4. As Dimopoulos and Bagaric reason, the judicial sentiment of sympathy for a plaintiff is not a prerequisite for an award of compensation.

Sanctity of Life and Devaluation of the disabled. A judicial determination that non-existence would be preferable to a life with disabilities inevitably raises questions as to the proposed value of human life, and has the potential to occasion significant societal revulsion.

The pronounced judicial unease that has surrounded the action has primarily been attributable to the fear that the recognition of the claim would offend the deeply held societal belief in the sanctity of human life.

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Rev 29 at Is that the Question? J at ; James Bopp, Barry A. Bostrom and Donald A. A judicial acceptance that non-existence can be considered to be preferable to life does threaten the sanctity or inviolability of life principle. Though Kirby J asserts that no threat is posed to the doctrine, as the claim is premised on a life of suffering,69 there is clearly no basis to ignore the reality that the wrongful life plaintiff is seeking recompense for a negligent action which has led to the creation of a life.

Therefore, though it can be accepted that the wrongful life claim does present a threat to the sanctity of life doctrine, it is apparent that the doctrine is no longer treated as the moral absolute that it once was.

Though Crennan J placed little emphasis on the sanctity of life doctrine itself, her Honour did place strong emphasis on the related policy objection which posits that recognition of the claim effectively amounts to a devaluation of disabled life.

See also above n The positions of the two judges were thus diametrically opposed. It is clear that the financial injection provided by an award of damages would give the wrongful life plaintiff the opportunity to access services and care that may not be adequately provided for by the State. The provision of State compensation is not dependent on the morally fraught determination that non-existence 77 See for example, McKay, above n 3, per Stephenson LJ atWendy F.

Should the Action be Allowed?

  1. We must then question whether such an extension, which would create an undesirable incoherence in the law, could be validated by the supposed injustices which denial of the claim effects.
  2. Plaintiffs allege that, as a result of Dr.
  3. The District Court dismissed the Romeros' suit based on its conclusion that both Joshua's claims and his parents' claims were barred by the Feres doctrine.

Rev at Exposing a Social Apartheid at Therefore, though the provision of State funds for the disabled is not seen to devalue the disabled, it must be emphasised that this financial provision cannot be considered analogous to the damages awarded under the wrongful life action. Moreover, though advocates of the action espouse that the provision of damages equates to a tangible demonstration of judicial compassion for the plaintiff,82 such emotive pronouncements lack merit.

As Dimopoulos and Bagaric reason, the judicial sentiment of sympathy for a plaintiff is not a prerequisite for an award of compensation. Stud,at ; Morris and Santier, above n 68, atLysaught, above n 77, at As noted by Kirby J in Harriton, there is no legal right in existence which enables a medical practitioner to compel a mother to undergo an abortion. However, this leads us to the question as to what the proposed duty of care owed by the medical practitioner to the foetus would entail.

It is evident that in light of the current laws surrounding abortion, the scope of the duty could not feasibly include a duty to take a life. This proposed objection is therefore inherently weak. A policy objection of greater significance is the potential implication that judicial recognition of the duty could lead to a correlative duty of care owed to the foetus being imposed upon a mother.

Such a duty would be breached if, upon the receipt of medical advice that the foetus is likely to be disabled, the mother declined to have an abortion and elected to continue the pregnancy.

Although a prospect of such a filial action in these circumstances has been considered to be acceptable by one US state jurisdiction,91 it has generally been received with pronounced disfavour in both judicial and academic discourse. See also Jackson, above n 9, atDimpoulos and Bagaric, above n70, at 52, Hersch, above n 22, at It must be noted that the right to refuse medical procedures is stated in s11 New Zealand Bill of Rights Act Slight variations of this proposed duty have been widely endorsed by commentators, see, for example, Morgan and White, above n 37, at ; Shapira, above n 56, at ; Jackson, above n 9, at ; Morris and Santier, above n 68, at ; Grainger, above n 6, at ; Dimopoulos and Bagaric, above n 70, at 52; Hersch, above n22, at In contrast see Dimpoulos and Bagaric, above n 70, at As his Honour argues the deep-seated concern about the potential risk of familial fracture appears to overlook the fact that the underlying motivation which lies behind the action is a desire for monetary gain.

As Kirby J argues, not only would these rights mean the nature of the maternal- foetal relationship would be different from the doctor-foetal relationship, but they would also entail, if a duty was nevertheless recognised, that the judiciary would be most reluctant to hold such a duty had in fact been breached. This was also the case in Perruche, see Lysaught, above n77, at As previously discussed, the duty can never be formulated as a duty to abort.

What Place for the Public Good? For favourable comment on these decisions, see generally, Scott above n99 at Todd n17 at