More details are coming in about an outrageous lawsuit in South Africa that has the mother of a child with Down syndrome suing on her 6-year-old son’s behalf for damages because she would have had an abortion had she known her son had Down syndrome.
As LifeNews reported yesterday, the child’s mother has filed a wrongful life lawsuit since the deadline had expired to file a wrongful birth lawsuit. Such lawsuits ask pro-life advocates to ask whether a parent of a disabled child wishes their baby had never been born since the parent is lamenting a missed opportunity to have an abortion and terminate their baby’s life.
Now, new information in the case shows the lawsuit seeks $6 million in damages. The new information in this report also indicates the child’ mother has tried before to sue for damages because she was unable to obtain an abortion and that that lawsuit was dismissed.
The mother, who cannot be named to protect the child’s identity, wants the Foetal Assessment Centre, in Claremont, to pay damages for, she says, failing to recognise that her unborn son was at “very high risk” of Down’s syndrome.
Had she known the severity of the risk, she would have aborted the foetus, she said.
If the court, which has reserved judgment, rules in favour of the mother, it would open the door to a new basis for a claim for damages, “wrongful suffering”.
“The reality of the situation is that [the child] exists and suffers due to the negligence of the defendant,” her court papers claim.
The boy, who also has “serious and permanent cardiac defects”, needs “total dependence and continuing care” and has “a life that includes suffering”.
The Claremont centre, which opposed the application, said that such claims should not be allowed because they “compare the value of living with a disability with the value of never being born”.
When the matter went to the High Court in Cape Town earlier this year the mother’s application was dismissed.
The centre raised a number of issues, including that “wrongful life” claims were against public policy and were not recognised in South African law.
Citing case law, the High Court noted that such a claim – which would require a court to determine whether a child should have been born – “goes to the heart of what it is to be human, [something that] should not be asked of the law”.
Douglas Johnson, the legislative director for the National Right to Life Committee, has comments on these kinds of cases before.
“The concept that a violent pre-natal death by abortion is preferable to life with a disability is incompatible with, and corrosive to, fundamental disability-rights principles. Acceptance of such causes of action is a manifestation of a resurgent drive to promote human eugenics — an ideology that was in vogue in the early 20th century, but became discredited when zealously implemented in some states and nations. Certainly, such lawsuits cannot be reconciled with recognition that each unborn member of the human family has an intrinsic right to life,” he explained.
This case comes on the heels of one from New Zealand, where a couple won their case at a federal appeals court because they would have aborted their little girl had they known she had spina bifida. The parents of a child with the condition could win a monetary settlement following the ruling saying they were “denied” a chance to abort their daughter.
During ultrasounds scans as the pregnancy progressed, doctors missed signs of the birth “defect” and the couple said that, had the spina bifida been detected, they would have killed their daughter in an abortion. Instead, the little girl was born in 2007 and the couple has been in court even since.
The Court of Appeal ruling claims the couple “suffered a personal injury because of the misdiagnosis” and the case now returns to a district court.
“Wrongful birth and wrongful life lawsuits are just plain wrong,” says LifeNews blogger Rebecca Taylor.
She adds: “The wrongful birth suit is brought by the parents of a sick or disabled child against a physician that, the parents say, was negligent. The wrongful birth lawsuit does not say that the doctor caused the disease or disability, which would be a valid reason to sue. Instead the wrongful birth lawsuit claims the that doctor failed to inform the parents of the illness or disability of the child and that had they known, they would have aborted their child. In other words, the parents are saying we wish our child was dead. Because he or she is not, the doctor has to pay.”
“The parents often use the excuse that they love their child; they are simply suing to acquire funds to care for their sick or disabled offspring. But to get those funds they have to insist that, had they known, they would have killed that very same child,” she continues.