Wrongful Life

Introduction

‘Wrongful life’ cases involve the negligent failure of a medical practitioner to diagnose or warn parents of the risk of their child having a disease or disability. The parents, if warned, would have avoided conception or terminated a pregnancy by way of lawful abortion.

Wrongful life claims for compensation are brought by the child (or in reality by someone acting on the child’s behalf), who has been born with disease or disability. The cause of action is negligence.

The Courts have grappled with difficult questions raised by such claims, including whether a wrongful life action constitutes a valid cause of action; and, if so, what compensation would be payable. 1

The current law in Australia is that such claims are not recognised, and compensation will not be awarded.

Are the children claiming compensation for being alive?

The term ‘wrongful life’ has been said to be misleading by former Justice of the High Court, Michael Kirby. Rather than viewing the claim as one about whether or not a child should exist, he said that the focus should be upon the defendant’s conduct that has caused the plaintiff’s suffering.

Nevertheless, the action in Australia has not succeeded.

The Law

High Court of Australia

The leading authorities on the issue in Australia are Harriton v Stephens 2 and Waller v James 3

In both cases children were born following the failure of doctors to warn of the risks of the children being born with disability or disease. In both cases a claim for compensation was denied by the High Court on the basis that there was no duty of care; causation issues; the impossibility of calculating damages; and policy reasons regarding not devaluing a disabled person’s life.

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For more information about a cause of action in negligence see here:
Leaves

Notes:

  1. See Harriton v Stephens (2006) 226 CLR 52; (2006) 226 ALR 391 [33] (Kirby J).
  2. Harriton v Stephens (2006) 226 CLR 52.
  3. Waller v James; Waller v Hoolahan (2006) 226 CLR 136.