The High Court and Wrongful Life Claims: How Should It Decide?
![handle is hein.journals/hicoqur1 and id is 189 raw text is: Mirko Bagaric and Penny Dimopoulos
THE HIGH COURT AND WRONGFUL LIFE CLAIMS:
How Should it Decide?*
Professor Mirko Bagaric, Head of Deakin Law School
Penny Dimopoulos, BA, LLB
Abstract The High Court ofAustralia has granted special leave to hear a wrongfid
life claim. This is the first action of its type that will be determined by the
High Court. A wrongfi life action is a claim brought by a disabled child
who asserts that but for a physician's negligence he or she would not have
been born, thereby being spared the suffering of life. The action is
inherently controversial because the alternative to an impaired life is non-
existence. Lord Griffiths has described such claims as 'utterly offensive;
there should be rejoicing that the hospital's mistake bestowed the gift of
life upon the child'. I This paper cuts through the rhetoric that the debate
has generated and analyses whether there is a sound doctrinal basis for
recognising wrongful life actions.
1 INTRODUCTION
Wrongful life describes an action brought on behalf of a plaintiff who has been born with
disabilities due to medical negligence and who, but for that negligence, would have been
aborted as a foetus.2 The action involves a claim for damages for the pain and financial
hardship endured by the plaintiff as a result of being born. The plaintiff claims that but
for the defendant's negligence he or she would not have come into existence and would
thus have been spared the suffering in his or her life.3
Developments in human genetics and biomedical science have made it increasingly
possible to detect genetic defects in unborn children. The ability of doctors to provide
more information to prospective parents brings with it moral responsibilities and
challenges. A doctor who negligently performs his or her duties (for example, by failing
to screen for a genetic condition, or providing inaccurate advice) could potentially have a
wrongful life action brought against him or her by a child born as a result of that
negligence. Wrongful life actions give rise to legal, ethical and social concerns, and have
received mixed reactions from courts worldwide.
This paper is derived from our paper 'The Moral Status of Wrongful Life Claims' (2003) 32
Common Law World Review (UK). We are grateful to the editors of the Common Law World
Review for permission to reprint the paper.
McKay v Essex Area Health Authority [1982] 1 QB 1166. 1193.
2 R Lee. 'To Be or Not to Be: Is That the Question? The Claim of Wrongful Life' in R Lee and D Morgan
(eds) Birthights: Law and Ethics at the Beginnings of Life (Routledge, London, 1989) 172.
3 See for example, M Strasser, 'Wrongful Life, Wrongful Birth, Wrongful Death, and the Right to Refuse
Treatment; Can Reasonable Jurisdictions Reeongnize All But One?' (1999) 64 Missouri Law Review 29.
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The High Court and Wrongful Life Claims: How Should It Decide?
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