Stewart v Botha

Brian Stewart was born in 1993 with severe congenital defects, including spina bifida and hydrocephalus. His parents alleged that the respondent general practitioner and obstetrician negligently failed during pregnancy to detect and inform the mother of these abnormalities. It was pleaded that, had she been properly informed, she would have lawfully terminated the pregnancy. The mother claimed damages in her personal capacity (a ‘wrongful birth’–type claim). Separately, the father, on behalf of the minor child, instituted a delictual claim for the child’s maintenance, medical and related costs, alleging that the doctors’ negligence caused the child to be born with severe disabilities. The respondents excepted to the child’s claim on the basis that it disclosed no cause of action and was contra bonos mores and against public policy. The High Court upheld the exception and dismissed the child’s claim, and the matter came before the Supreme Court of Appeal.

The appeal was dismissed with costs; the High Court’s decision upholding the exception and dismissing the child’s claim was confirmed.

This is a leading South African authority definitively rejecting ‘wrongful life’ claims. The case clarifies that, unlike parental ‘wrongful birth’ claims, a child cannot sue medical practitioners for being born with disabilities. It is significant for its articulation of wrongfulness as a policy-based enquiry, its reliance on constitutional values of dignity and the sanctity of life, and its firm stance that courts should not engage in comparisons between life and non-existence.