People Are Suing For Being Born -- And Winning
Should you be entitled to compensation when, if but for the negligence of another, you would not have been born?
This is the question underpinning a number of civil cases often called ‘wrongful life’ actions.
Wrongful life cases commonly involve a severely disabled plaintiff suing a doctor for failing to provide information about a risk of disability to their mother. The action is usually seeking monetary compensation for a life of disability, which could have been avoided if a mother had knowledge prior to conception or had exercised her right to an abortion.
Wrongful life cases have not had much success in Australia, but a modified form of the claim -- known as ‘wrongful birth’ -- has had success.
The distinction comes down to who is suing: Is it the parents, or is it the child that would otherwise not exist?
In Cattanach v Melchior, a mother successfully sued an obstetrician-gynaecologist for negligence after a botched sterilisation procedure led to the birth of an unwanted third child. This was upheld in the High Court, with Justices McHugh and Gummow in the majority, having a rather blunt response to the idea that compensation for economic loss of raising a child posed any ethical dilemmas, stating:
The notion that in every case, and for all purposes, the birth of a child is a 'blessing' represents a fiction which the law should not apply to a particular case without objective evidence that bears it out.
Following Cattanach, some states have passed legislation to restrict or prohibit ‘wrongful birth’ claims.
The most prominent ‘wrongful life’ case in Australia is Harriton v Stephens, which also found its way to the High Court.
Alexia Harriton was a 25-year-old woman who lived with a number of disabilities including blindness, deafness, mental retardation and spasticity, as a result of her mother contracting the rubella virus during pregnancy.
Harriton’s mother had gone to her doctor suspecting she had the virus and raised concern that it could impact her baby, but was assured by her physician that exposure to the rubella virus was unlikely. As a result, Harriton was born with disabilities that requires constant supervision and care.
Harriton (via a guardian) sued the physician for her medical costs as well as pain and suffering arguing that, had the doctor not provided negligent advice, her mother would not have continued with the pregnancy.
The High Court dismissed Harriton’s wrongful life claim, largely on the basis that suing in negligence requires that damages (or ‘loss’ suffered by the plaintiff) be quantifiable. How do you measure the value of non-existence? As Justice Callinan put it:
It is not logically possible for any person to be heard to say 'I should not be here at all,' because a non-being can say nothing at all.
Wrongful life cases have had much more success overseas.
In the United States, plaintiffs have made successful claims for being alive on the basis that negligence resulted in a life with hereditary deafness, Tay–Sachs disease and complications from rubella (similar to the Harriton case).
In the Netherlands, an 11-year-old girl was successfully able to sue for being born with a chromosomal abnormality.
Many other countries across Europe, including the UK and Germany, initially allowed an action for wrongful life in the courts, but this has since been banned either through legislation or constitutional challenges.
Broadening the scope
In areas where wrongful life cases are allowed, it is intriguing to ask how abstractly philosophical a claim can get.
Recently, an Indian man named Raphael Samuel has publicly stated his intention to sue his parents for bringing him into the world. Samuel is an ‘antinatalist’ who believes it’s wrong for parents to bring a child into a world full of suffering.
Antinatalism is a position that has been supported by a number of thinkers throughout history, including the writer and philosopher Emil Cioran, who once pithily described consciousness as a “dagger in the flesh” and argued that “not to be born is undoubtedly the best plan of all”.
India has not previously had a wrongful life case before the courts, and Samuel has struggled to find a lawyer willing to take the case.
Ironically, both Samuel’s parents are lawyers and are not overly confident of his success. In a statement, Samuel’s mother said: “If Raphael could come up with a rational explanation as to how we could have sought his consent to be born… I will accept my fault.”