Kamwendo, T.Mulder, Lizandré2024-07-192024-07-192023http://hdl.handle.net/11660/12676Dissertation (LL.M.(Private Law))--University of the Free State, 2023Is it better to not be born at all than to be born with a severe disability? Is there any life that is not worthwhile?¹ suspect that many readers would initially be hesitant to disagree. The well-known slogan “every life is worth living” sums up this tendency or the revulsion to the extremely unsettling notion that some lives are worse than nothing or are not worth living.² Alternatively, in circumstances where the quality of life is so poor that it is understandable to feel contrite about ever being born or to hate the day of a child’s birth, it appears to be the harsh reality that it was unlucky for such a child to be born to live such a life and that the child’s life is not worth living³ The issue of wrongful life claims has become increasingly prevalent in South Africa’s legal landscape, raising complex ethical and legal questions surrounding the right to life and the compensation for harm caused by medical negligence.⁴ Medical professionals may be held accountable under South African law if they fail to fulfill their legal obligation to a healthcare consumer and harm results.⁵ When a child is born with an abnormality or handicap, and the parents assert that they would have ended the pregnancy, in respect of the 𝘊𝘩𝘰𝘪𝘤𝘦 𝘰𝘯 𝘛𝘦𝘳𝘮𝘪𝘯𝘢𝘵𝘪𝘰𝘯 𝘰𝘧 𝘗𝘳𝘦𝘨𝘯𝘢𝘯𝘤𝘺 𝘈𝘤𝘵,⁶ if they had been adequately informed of the defect or condition, the claim of wrongful life arises.⁷ For many years, wrongful life claims have been a contentious subject in South Africa.⁸ The legal context and case law pertaining to these claims constantly change, and the courts have been asked to address complex moral and ethical dilemmas.⁹ In South Africa, the right to reproductive autonomy is constitutionally protected. This means that, in terms of the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 𝘰𝘧 𝘵𝘩𝘦 𝘙𝘦𝘱𝘶𝘣𝘭𝘪𝘤 𝘰𝘧 𝘚𝘰𝘶𝘵𝘩 𝘈𝘧𝘳𝘪𝘤𝘢 1996, hereinafter referred to as “the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯",¹º individuals have the right to make informed decisions about their own bodies and to have access to information that allows them to make those decisions.¹¹ Section 12(2) of the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯¹² states that: “Everyone has the right to bodily and psychological integrity, which includes the right— (a) to make decisions concerning reproduction; (b) to security in and control over their body; and (c) not to be subjected to medical or scientific experiments without their informed consent.¹³ However, the law is less clear when it comes to the rights of parents to make decisions on their unborn child’s behalf. In wrongful life claims, the courts must balance the right of parents to make reproductive choices¹⁴ with the rights of a child who has been born with a disability or congenital disability while, most importantly, taking the best interest of the child into consideration.¹⁵ While society and the government control many aspects of people’s daily lives, they do not actively attempt to control human reproduction.¹⁶ The courts within South Africa have been reluctant to recognise wrongful life claims, with the majority of cases being dismissed by reason of the child’s right to life¹⁷ trumps the parents’ right to reproductive choices.¹⁸ However, as will be seen throughout this dissertation, there have been a few cases in other jurisdictions where the courts have allowed wrongful life claims to proceed, particularly in cases where the parents were deprived of essential information that would have allowed them to make an informed decision about the pregnancy. The issue of wrongful life claims remains a contentious issue in South African law along with international jurisdictions¹⁹ and is likely to continue to be the subject of debate and litigation in the years to come.²ºenDissertationUniversity of the Free State