In Harriton v Stephens, a child (Alexia Harriton) was born suffering severe congenital disabilities following her mother having contracted the rubella virus while pregnant. The mother’s rubella was not diagnosed during her pregnancy, nor was she warned of the consequent risks of her fetus being born severely disabled.
It was agreed that a reasonable medical practitioner would have advised the mother of such risks, and that if she had been so advised she would have aborted the fetus.
In Waller v James; Waller v Hoolahan, a child (Keedon Waller), was conceived with the assistance of in vitro fertilisation (IVF) treatment after analysis of his father’s sperm disclosed a low sperm count and poor sperm motility. Prior to Keedon’s conception, it was also found during testing that the father suffered from anti-thrombin 3 (AT3) deficiency, a genetic condition that results in a propensity of the blood to clot in arteries and veins. The treating fertility doctor failed to discuss or follow up on the AT3 condition further, and the risk of a child inheriting AT3 was not explained.
Keedon was subsequently born with a genetic AT3 deficiency. A day after he was released from hospital he suffered a blood clot in an artery that supplies blood to the brain, which resulted in brain damage, cerebral palsy, and uncontrolled seizures.
The parents testified that, if properly informed about the AT3, they would have i) delayed IVF until methods were identified to ensure transfer of only embryos free of the AT3 deficiency, ii) used donor sperm, or iii) terminated the pregnancy. Both cases were heard together as they raised similar legal issues.
The High Court denied both claims.
It was held by the majority 6:1 (Kirby J dissenting) that ‘wrongful life’ is not a legitimate cause of action.
In particular, the majority held there was no duty of care owed by the negligent medical practitioner to the children born (i.e. the plaintiffs), because:
- finding such a duty would conflict with the duty of care to the mother, and this would not enable coherence of legal principles;
- Harriton, and Waller, could not properly show that they had suffered legally compensable harm. This was because their claim was seen to require an impossible comparison between existence and non-existence to calculate the ‘loss’ they claimed they had suffered;
- such actions, if allowed, might devalue the lives of people with disabilities — and therefore based on policy reasons should not be allowed;
- the disabilities were not the doctor’s fault as he could not have prevented them because he could not compel an abortion.
Kirby J in his dissenting judgments in Harriton and Waller said that he saw no convincing legal principles or matter of policy to deny the claims. He noted that Courts regularly make assessments of a difficult nature regarding life (eg. withdrawal of treatment from infants; separation of conjoined twins), and expressed concern that finding against such claims would lead to immunity for health care providers whose negligence had caused profound and lifelong suffering. Such immunity would fail to encourage proper medical care and responsibility.