The judges do not see it like Freddie Mercury who said in the lyrics of the great Queen song Bohemian Rhapsody, “”I sometimes wish I’d never been born at all.” For the judges, a comparison between of the value of non-existence with the value of existence in a disabled state is an impossible exercise.
The logic and law of the dismissal of the “‘wrongful life” cases in NSW this week were compelling – so compelling, in fact, that they show how inadequate the adversary system of law is in dealing with these cases of human suffering.
Three cases – the first of their kind in Australia — were decided by Justice Timothy Studdert. One baby was born with a genetic after a vasectomy failed. Another was born with a genetic defect after IVF treatment and the IVF program failed to screen and advise. The third was born with severe disability after the mother had rubella (measles) in pregnancy. The mother told her doctor about a rash and doctors failed to diagnose it correctly. In each case the babies sued for wrongful birth. The parents are also suing and their cases are pending.
In Australian law, to win an action in negligence, you have to show: a duty of care was owed to the plaintiff; a breach of that duty (negligence); damage; and causation (that the breach of the duty caused the damage).
Not all the elements are there in wrongful birth cases. The doctor owes a duty of care to the infant (even before birth). There was negligence, but not in respect of the duty to the infant, only to the mother (and fathers in the IVF and vasectomy cases), so there was no breach of the duty to the infant. There was damage. But there was no causation because the damage was caused by the rubella or the genetic defect in the vasectomy and IVF cases.
The gist of the babies’ case is that the doctors were negligent in allowing them to be born at all, a claim for wrongful entry into life. The trouble with this is that the logic does not flow. Take the rubella case, if the doctor had not been negligent, there were two possibilities. The mother could have had an abortion, in which case there would be no baby to be plaintiff in the case. Or the mother in the full knowledge of the rubella-deformity risk could have gone ahead with the pregnancy. If so, the deformity would not be the doctor’s fault. The doctor therefore was under no duty to the infant to give the mother a chance to terminate the infant’s life. If that were the case, the law would be saying that the life of a handicapped child is not only less valuable than a normal child, but so much less valuable as not to be worth preserving at all. Also, if the doctor had a duty of care to the infant so would the mother – should a child be allowed to sue the mother for not aborting?
The only opportunity for life for these babies was an opportunity of life with a disability. The option of a “normal” life was not on. The doctor’s negligence did not cause the deformity; nature did.
Then comes the difficulty in assessing damages. In theory damages are paid to put the plaintiff back where he would have been had there been no negligence – insofar as money can do such a thing. That would put the court in the position of assessing the difference between handicapped existence and non-existence – a task for lyricists, not judges.
But helping to look after these babies is a task for society. One of the reasons that more people are suing for personal injury is perhaps because public health services are being squeezed and there is more user-pay mentality and long waiting times for public services. If there is no help and increasing costs in the public sector, small wonder people sue – and add a few extra claims for pain and suffering, lost income and so on while they are at it. But what an unsatisfactory lottery it is. These parents now have huge legal bills, and even less to spend on their disabled children.
Alas, the parents have negligence actions of their own. The mothers are suing for lost earnings and the pain caused by pregnancy and childbirth, and will probably get something. Each couple is also suing for the cost of bringing up the child – but success there is less likely. Some Australian state cases and English say the children could be adopted out, so the parents are voluntarily taking on the task; others say it is against public policy; others say damages must be limited to the extra cost of bringing up a disabled children as against a normal child and others say the costs are recoverable. The High Court has agreed to hear an appeal against the last ruling.
With this uncertain state of the law and less help from the public health system, maybe the parents might starting wishing they had never been born at all.