Wrongful Birth, Life and Death

Abstract

In the last decade, the High Court of Australia has had to address the difficult legal, moral and social issues encapsulated in cases involving tragic medical and medical technology issues. The cases involve the courts grappling with the concept of legal fault at both ends of the life spectrum: • Wrongful life refers to the fact that a person is born 'against the odds': these include a combination of the wishes of the parents, and the medical advice provided to them and upon which they have relied. In a wrongful life suit, it is the child who is the plaintiff and action is brought on his or her behalf. As we will see, the High Court of Australia ruled 'Harriton v Stephens' that such cases fail the damages test in negligence. • Wrongful birth is similar to, and overlaps with, the wrongful life concept. In this case it is the parents, as opposed to the child, who bring the claim. The concept of damages is also problematic. • Wrongful death refers to negligence on behalf of the defendant that caused the premature death of a person. The claim in negligence is made by surviving dependants and the estate.