Wrongful Life Damages for Wrongful Article Critique

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The text by Neville & Lokuge (2006) reports to the evolving status of this question since the rash of birth defects caused in the 1970s by the Thalidomide drug. These events would give way to what Neville & Lokuge call a 'novel' legal question. Its novelty, the article suggests, may be the primary reason that courts of have decided with inconsistency how best to address 'wrongful life' and 'wrongful birth' cases. Accordingly, the article reports that "courts have endeavoured to be careful in recognising and awarding damages in novel areas of law, such as "wrongful birth" and "wrongful life." The High Court of Australia has recently given judgment in both kinds of action: in 2003 allowing a claim for wrongful birth (Cattanach v Melchior), but in May 2006 disallowing two separate claims for wrongful life (Harriton v Stephens and Waller v James/Waller v Hoolahan)." (Neville & Lokuge, 559)

The research conducted here finds that this inconsistency is a product of core values held by many lawmakers and members of the public which overlap beliefs concerning abortion and the legal slippery slope created by the establishment of allowance. However, a separation from these considerations and a reflection on the issue of awarding damages in wrongful life cases shows such a response to be more effectively consistent with the implications of Australian tort law. This is to say, as supported in the text by Pollard (2004), that the legal precedent in matters of medical malpractice makes it assumptive that damages would be awarded in wrongful life instances. Court decisions to the contrary should be viewed as having made special conditions by which to formulate a denial of the plaintiff's rights. Pollard states on this point that "Wrongful life cases also depart from negligence jurisprudence by utilizing a unique damages analysis that finds no precedent in prior negligence cases and results in no remedy, despite enormous medical and other expenses and often severe pain, suffering, or other injury.

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In addition, wrongful life jurisprudence departs from the policy-based trend to create alternative theories of recovery where a strict adherence to common law doctrine would unjustly result in no remedy to innocent victims." (p. 1)

In this regard, we can see that it is of necessity to critically distinguish wrongful life from legal discussions on abortion rights and instead evaluate this as a common tort law issue. This approach should allow for a more realistic and ethically balanced perception of the rights, financial costs, emotional suffering and lost opportunity for practical preparation that may result from the negligence of physicians failing to identify critical birth defects.

As a positive precedent for how such cases should be handled in order to maintain consistency with Australian common law on the subject of medical malpractice and related tort awards, we consider such cases as Veivers v Connolly (1995) 2 Qd R. 326, in which "the mother of a severely handicapped child, born as a consequence of the defendant's negligence, recovered costs associated with past and future care of the child, covering a period of 30 years." (Case Notes, 1)

This case would demonstrate the understanding that the implications of the terminology 'wrongful life' are not intended as a segue into validating abortion but are instead related to the accountability of the prenatal physician to apply proper treatment and to inform the expectant mother of the realities of her condition, the status of her pregnancy and the options available to her in the event of impending suffering for the unborn child.

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