Stewart v Botha

The first appellant gave birth to a child, Brian, on 4 August 1993 with severe congenital defects including lumbo-sacral myelomeningocele (spina bifida) and hydrocephalus. The first appellant (mother) sued the respondents (her general practitioner and specialist obstetrician) for special damages relating to maintenance, special schooling, and medical expenses. The second appellant (father), on behalf of his minor son Brian, instituted an alternative delictual claim for the same damages. The claim was based on allegations that the respondents, whilst treating the first appellant during pregnancy, were under a duty to detect abnormalities in the foetus and advise the first appellant thereof. Had she been so advised, she would have terminated the pregnancy. The respondents excepted to the claim on the basis that it disclosed no cause of action, was contra bonos mores and against public policy. Louw J in the Cape High Court upheld the exception and dismissed the claim with costs.

• Whether a child born with congenital defects has a legally recognizable claim (a 'wrongful life' claim) against medical practitioners who negligently failed to detect and inform the mother of the defects during pregnancy
• Whether such a claim is wrongful in law
• Whether public policy considerations permit the recognition of such a claim
• Whether the court can make a value judgment that non-existence is preferable to life with disabilities
• The application of constitutional rights (sections 10, 11, 12(2)(a), 27, 28(1)(d) and 28(2)) to such claims

The appeal was dismissed with costs. The Supreme Court of Appeal upheld the exception and confirmed that the law does not recognize a 'wrongful life' claim by a child born with congenital defects against medical practitioners who negligently failed to detect and inform the mother of such defects during pregnancy.

The law does not recognize a delictual claim by a child against medical practitioners for 'wrongful life' (i.e., for being born with congenital defects that would have been detected and led to termination of pregnancy but for the practitioners' negligence). Such a claim fails on the element of wrongfulness because: (1) it would require the court to determine whether non-existence is preferable to life with disabilities, a metaphysical question beyond the proper realm of law; (2) it is impossible (not merely difficult) to assess the harm or damages, as this requires comparing life with non-existence; (3) recognizing such claims would involve an arbitrary, subjective preference for certain policy considerations while denying others; (4) it would disregard constitutional values protecting the sanctity of life (section 11) and human dignity (section 10); and (5) the essential question of whether a child should have been born at all goes so deeply to the heart of what it is to be human that it should not be asked of the law. Wrongfulness in delict requires judicial determination based on public policy considerations consistent with constitutional norms, and these considerations militate against recognition of wrongful life claims.

The court made several non-binding observations: (1) It noted the extensive international debate on wrongful life claims, observing that for every argument there is a counter-argument, and jurisdictions allowing such claims have not resolved the debate but simply favoured selected policy considerations. (2) The court acknowledged concerns about 'floodgates' arguments (claims for minor defects, claims against mothers who chose not to terminate) but did not need to resolve these as the claim failed on more fundamental grounds. (3) The court commented that measuring 'gravity' of defects would be subjective, uncertain and undesirable. (4) It observed that the more serious the disability, the less possible it may be to appreciate suffering or lack thereof. (5) The court noted that exception is not always the appropriate stage to decide such matters, though in this case it was suitable. (6) The court remarked on the French experience where initial judicial recognition of wrongful life claims was reversed by legislation following political pressure from disability advocacy groups and medical professionals.

This is the leading South African case on 'wrongful life' claims. It definitively establishes that such claims are not recognized in South African law on grounds of public policy and constitutional values. The case provides important clarity on the distinction between wrongfulness and negligence in delictual liability, particularly in cases involving pure economic loss. It affirms that where there is no precedent for imposing liability, courts must engage in policy decisions and value judgments reflecting constitutional norms and society's notions of justice. The judgment demonstrates judicial restraint in declining to answer metaphysical questions about the value of life with disabilities versus non-existence. It distinguishes wrongful life claims from related but recognized claims (wrongful birth/pregnancy claims by parents, and claims for injuries in utero). The case aligns South Africa with the majority international position refusing such claims while acknowledging the difficult policy tensions involved.