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Snyders AJA in numbered paragraphs 10 and 11 of her judgment says the following:-
"In these cases the claim that arose and was awarded was that of the parents who sought to recover the additional financial burden they had to bear in consequence of the negligence. There is no question in those cases of the essential dilemma that arises in the case before us, as it is not questioned in those cases whether the child would have been better off not to have been born. Those cases commence with an acceptance of the fact that the birth has occurred and seeks to address the consequences of the birth.
At the core of cases of the kind that is now before us is a different and deeply existential question: was it preferable – from the perspective of the child – not to have been born at all? If the claim of the child is to succeed it will require a court to evaluate the existence of the child against his or her non-existence and find that the latter was preferable."
The Learned Acting Judge of Appeal briefly considered the following provisions of our Constitution
Section 12(2) (a): ‘Everyone has the right to bodily and psychological integrity, which includes the right to make decisions concerning reproduction.’
Section 27of the Constitution provides for the right of everyone to health care services, sufficient food and water, social security, social assistance and emergency medical treatment and the obligation of the state to take reasonable legislative measures, within its resources, to achieve the
realisation of these rights
.
Section 28(1) (d): ‘Every child has the right to be protected from maltreatment, neglect, abuse or degradation.’
Section 28(2): ‘A child’s best interests are of paramount importance in every matter concerning the child.’
At numbered paragraph 25 of her judgment the Learned Acting Judge of Appeal observes
"Nobody would deny that Brian’s best interest would be served if he had access to all possible medical provision for his condition, but the question remains who should be liable."
At numbered paragraph 28 of the judgment Snyders AJA concludes:
" from whatever perspective one views the matter the essential question that a court will be called upon to answer if it is called upon to adjudicate a claim of this kind is whether the particular child should have been born at all. That is a question that goes so deeply to the heart of what it is to be human that it should not even be asked of the law. For that reason in my view this court should not recognise an action of this kind."
Now to sum up in language easy to understand and follow, the Supreme Court of Appeals has recognised that Mrs S has a claim for the economic loss she suffered in the form of future medical expenses and schooling costs specially required for Brian on the basis that it was both negligent and wrongful for her medical advisers not to have detected the congenital abnormality and to have informed her thereof so she could have exercised the choice of whether or not the pregnancy be terminated.
What the Court has refused to countenance is the Child's claim in saying he would have preferred not to have been born at all rather then live the miserable existence he has to suffer because of his congenital defect. The sanctity of life and the right to life as enshrined in our constitution overrides any other consideration.
DATED AT JOHANNESBURG ON THIS 29TH DECEMBER 2008
………………………………………………
VICKY BOVE & LESLIE KOBRIN
BOVE ATTORNEYS
Attorneys, Notaries and Conveyancers
Principal: Vittoria Bove BA LLB (Wits); Associate: Leslie Martin Kobrin Dip Juris (Wits) Bus Man (Dam) Notary Public & Conveyancer
South Wing Suite 1110
11th Floor Schreiner Chambers | 94 Pritchard Street | Johannesburg
Phone: (011)-336-9581/2/3 | Facsimile: (011) 336-9571
E Mail: lesk@boveattorneys.co.za
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