Justice missing in wrongful life cases

By Richard Ackland
May 12, 2006

AMID all the worries about the constitutionality of the corporations power's latest little love child, WorkChoices, it is amazing that the High Court managed this week to deliver its decision in the anxiously awaited "wrongful life" cases.

The corporations power is a snack compared to the importation of religion, morality, metaphysics and logic into the legal principles involved in determining whether someone who might not have been born at all, had their mother's doctor not been negligent, can be compensated for severe disabilities because they had in fact been born. What a field day.

Alexia Harriton, 25, and Keeden Waller, 5, were born terribly disabled. Alexia's mother had German measles while pregnant. Her doctor did not diagnose rubella and did not prescribe a follow-up blood test. Importantly, he did not advise her there would be a very high risk her child would be born with abnormalities. Alexia is blind, deaf, mentally retarded, suffers from spasticity and requires constant care.

Keeden was born after his parents underwent IVF. However, his father had a genetic condition that was not investigated by the IVF doctors and was passed on to the child, resulting in permanent brain damage, cerebral palsy and uncontrolled seizures.

Suing in their own right, the two children sought damages against the doctors. With only two of the 11 judges who grappled with these claims in three courts being on the side of the angels, the forces arrayed on the side of darkness must have been pretty formidable.

The problem was that in a claim for compensation the law seeks to quantify the damage against an identifiable benchmark, which would normally be the condition of the claimant before an injury. However, a "wrongful life" case involves comparing the value of a disabled life with no life at all, because had the doctors not been negligent the probability is that these two foetuses would have been legally aborted.

The law would require proof that in these circumstances you would be better off not being born. And not too many judges want to go there.

The majority throughout thought it is not possible to compare existence with non-existence, and so it is therefore impossible to quantify any loss. That is why Alexia and Keeden failed.

In examining this argument Justice Michael Kirby cited Ludwig Wittgenstein's view of existence: "Death is not an event of life. Death is not lived through."

What the majority position fails to accommodate is that there is a new modern order. Medical technology can detect abnormalities at very early stages of the development of a foetus. Good medical practice regularly results in the non-existence of human beings. What has been created by way of Alexia and Keeden is precisely what the doctors were engaged to prevent being created.

The High Court majority was not prepared to push the set-and-dried principles further. The black-letter brigade screamed at the court in 2003 for allegedly taking the law into new territory in the "wrongful birth" case of Cattanach v Melchior, where it was found that a wife and mother whose sterilisation operation was unsuccessful could recover damages for the financial requirements that flowed from the birth of a healthy child.

The new judge on the block, Justice Susan Crennan, wrote the lead reasons in these two "wrongful life" cases, getting into some contentious water in the process. She said these disabilities are only one dimension of humanity: "… every human life, within its circumstances and limitations, is characterised by an enigmatic and ever-changing mixture of pain and pleasure related to [biological] needs."

Justice Kirby, in the minority of one, cut through the artifice - the comparison with non-existence is a fiction, a creature of legal reasoning. The upshot is that the medical practitioners who were neglectful and caused damage have escaped "scot-free" and the law countenances this outcome.

A final wrinkle. If Alexia's and Keeden's parents had sued for damages in their own names there was every prospect of success. Yet it was too late for them to do that because the limitation period had gone.

And some people think that the Work Choices case is depressing.

