Stewart and Another v Botha and Another (340/07) [2008] ZASCA 84; 2008 (6) SA 310 (SCA) ; [2009] 4 All SA 487 (SCA) (3 June 2008)

Stewart and Another v Botha and Another (340/07) [2008] ZASCA 84; 2008 (6) SA 310 (SCA) ; [2009] 4 All SA 487 (SCA) (3 June 2008)

The Supreme Court of Appeal held that South African law should not recognise a delictual claim by a child born with congenital defects against medical practitioners for failing to detect and inform the mother of such defects, where the mother would have terminated the pregnancy if informed. The court reasoned that such a claim would require an impossible and undesirable comparison between life with disabilities and non-existence, which is beyond the competence of the law and contrary to the sanctity of life and dignity of the child. The court found that public policy and constitutional norms do not support the recognition of a wrongful life claim, and that the essential question—whether...

Citation
[2008] ZASCA 84
Parties
Appellant: Elizabeth Georgina Elzona Stewart; Appellant: Brian Stewart; Respondent: Dr M Botha; Respondent: Dr S Smal
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
3 June 2008
Case Number
340/07
Procedural Posture
Civil Appeal / Appeal From Exception Upheld in the Cape High Court
Outcome
Appeal dismissed with costs.
Judges
Streicher, Nugent, Heher, Cachalia, Snyders
Legal Topics
Wrongful Life Claims, Public Policy, Wrongfulness, Medical Negligence, Constitutional Rights, Termination of Pregnancy
Delict Wrongful Life Claims Public Policy Wrongfulness Medical Negligence Constitutional Rights Termination of Pregnancy

Case Brief

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Parties

Elizabeth Georgina Elzona Stewart

Appellant

Brian Stewart

Appellant

Dr M Botha

Respondent

Dr S Smal

Respondent

Procedural Posture

Civil Appeal / Appeal From Exception Upheld in the Cape High Court

Legal Issues

  1. 1 Whether South African law should recognise a delictual claim by a child born with congenital defects against medical practitioners for failing to detect and inform the mother of such defects, where the mother would have terminated the pregnancy if informed.
  2. 2 Whether public policy and constitutional norms support the recognition of such a claim.
  3. 3 Whether the harm alleged is legally cognisable and compensable.

Ratio Decidendi

The Supreme Court of Appeal held that South African law should not recognise a delictual claim by a child born with congenital defects against medical practitioners for failing to detect and inform the mother of such defects, where the mother would have terminated the pregnancy if informed. The court reasoned that such a claim would require an impossible and undesirable comparison between life with disabilities and non-existence, which is beyond the competence of the law and contrary to the sanctity of life and dignity of the child. The court found that public policy and constitutional norms do not support the recognition of a wrongful life claim, and that the essential question—whether...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.