The High Court has recently dismissed two claims for “wrongful life” in Harriton v Stephens and Waller v James. Although I feel sympathy for the two plaintiffs, I think that the High Court got it right.
In Harriton, Alexia Harriton was born with severe disabilities as a result of the fact her mother suffered from rubella in the first trimester of pregnancy. When her mother suspected that she had contracted rubella, she went to the doctor and expressed her concern. She was told (incorrectly) that she did not have rubella and that she should not worry. She argued that if she had known that she had rubella and there was a risk of her child being severely disabled, she would have had an abortion. Via her father, Alexia sued the doctor who gave her mother an incorrect diagnosis.
In Waller, Keeden Waller was born by means of IVF technology. His father had a condition known as “Factor III deficiency” which gave him a greater propensity to have blood clots. When Keeden was born, he also suffered from Factor III deficiency. Five days after he was born, he suffered from a cerebral thrombosis, and suffers from brain injuries, cerebral palsy and seizures as a result. His parents argued that they would not have chosen to have had Keeden if they had known that there was a likelihood that he would also have Factor III deficiency. Via his parents, Keeden sued the doctors involved in his conception.
In both cases, the majority of the Court (Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ) found that the doctors did not owe a duty of care to the plaintiffs. Crennan J wrote the primary judgments in each decision. The children could not sue the doctors for causing them to have a life with disabilities, as the doctors did not in fact cause the disabilities from which the plaintiffs suffered. The Court was somewhat troubled by the fact that the cases involved an inference that it would be preferable if the plaintiffs had not been born.
Furthermore, the only persons who could lawfully ask for the pregnancies to be terminated were the mothers of the plaintiffs. If a duty was recognised, this might raise an uncomfortable situation where a mother of a disabled child was encouraged to abort their child by a doctor (even if the mother’s wishes were otherwise).
Kirby J dissented. Ultimately, what lies behind his judgment is sympathy for the plaintiffs and a corresponding desire for the plaintiffs to be compensated by the doctors’ insurers. To his credit, Kirby J is also trying to be consistent with the case of Cattanach v Melchior (2003) 215 CLR 1, which awarded damages for “wrongful birth”. Incidentally, I would argue that Cattanach was wrongly decided, but that is a topic for another time. Whatever the practical implications of Kirby J’s judgment (which would be that the insurer pays), the legal position is that he holds that doctors are negligent.
It seems to me that Kirby J’s finding of negligence is flawed. It would be extraordinary if the doctors could be held liable for something which they did not “cause” (in the sense that their actions did not cause the plaintiffs to be disabled). Furthermore, the decision to abort was not in the hands of the doctor, but in the hands of the mothers in question.
The purpose of the action was reported to be to make the disabled childrens’ life more comfortable. This is understandable, but I do not think that the law of negligence is a suitable vehicle for getting proper support for disabled children. Instead, I think that better facilities should be provided for severely disabled children. My friend’s sister is very severely disabled, and when she reached the age of 18, her parents were told that she could not go to school any more (which had provided her with outings and activities). I believe that they have now found a program which will take her, but it was difficult.
In recent times, there has been a move to “care in the community” for disabled people, which, more often than not, results in either the disabled person being abandoned (if they have no one to look after them) or the parents and family of the disabled person being shouldered with an immense responsibility. These cases were really about the parents looking for financial assistance to help them deal with the responsibility and life-long care that their children will need. It is unavoidable that some people will be severely disabled because of disease or the circumstances of their birth, and it should not be anyone’s “fault”. Instead of looking to the law of negligence, I think that this is a burden with which we all must help. The state should provide more facilities for the proper care of disabled people, whether that be residential facilities, respite care or community activities.