Mrs X approached Simpsons Attorneys Inc with the following scenario:
She had a loop inserted as a birth control option. Unfortunately the loop was inserted incorrectly which resulted in the birth of her third healthy, but unplanned child.
It is important to distinguish between the three different actions, namely wrongful conception, wrongful life and wrongful birth. Wrongful conception (also referred to as wrongful pregnancy) actions are claims by parents against medical practitioners where failed sterilisation procedures, failed abortions or failed contraceptive measures result in the birth of a healthy, unplanned child.
Wrongful birth actions are claims instituted by parents against a doctor for the failure to advise them of foetal defects or genetic abnormality, thereby depriving them to exercise their choice of termination of the pregnancy. In the event that the parents were fully advised of the risk of the birth of a disabled child they would have aborted the child. A wrongful life action is an action brought on behalf of the disabled child against the doctor for its impaired existence.
For purposes of Mrs X’s query we will only focus on wrongful conception. In South Africa there have not been many cases dealing with wrongful conception, but it is accepted law that these claims are allowed based on contractual and delictual principals, more particularly on negligent misrepresentation by the doctor. The Appellate Division (now the Supreme Court of Appeal) has held that damages for maintenance of the child are recoverable because the loss was an economic one which the parents sought to avoid by way of birth control. The court further dismissed the arguments that the birth of a normal child is a blessing. The court stated that it is the financial burden and not the child as such that is unplanned.
No contraceptive measures can be guaranteed 100% and accordingly it is important to remember that although the action for wrongful conception is recognised in South African law, we still need to prove negligence. We thus need to prove that the doctor failed to fulfil his duties as expected by the reasonable doctor. The medical practitioner needs to commit an act or omission which falls short of this standard and which causes damage unlawfully.
Increased knowledge involves greater responsibility. The actions have evolved as a direct result of the evolution of medical science. Medical practitioners accordingly have a duty to fully advise parents to increase the scope for liability.
