New Zealand Law Students Journal
Last Updated: 30 August 2012
The significant advances that have occurred in medical technology and genetic
screening over the past decades have resulted in the
opening of a
“Pandora’s box of legal ills,”1 and it is evident
that physical suffering that once would have been considered attributable to the
hands of fate can now be contemplated
as an actionable injury. One of
the most ethically complex of these “legal ills” is the proposed
for “wrongful life.”2 The success of
this action is dependent upon the judicial acceptance that in
certain circumstances life can
be a compensable harm.
Unsurprisingly, the need for a judicial incursion into the depths of
metaphysics and existentialism
in order to determine the fundamental question
of whether life can constitute actionable damage, combined with the
policy concerns which surround such a claim, has led to a widespread
judicial reluctance to countenance the recognition of such
The High Court of Australia in
* BA/LLB (Hons), University of Canterbury; currently working as a clerk at the Court of Appeal. This article was a research paper submitted for the Laws 401 programme. I would like to acknowledge my supervisor Professor Stephen Todd for his helpful comments and advice given with regard to this paper.
1 Alexander Morgan Capron “Tort liability in Genetic Counselling” (1979) 79 Colum. L.
Rev. 618 at 619.
2 It must be noted that the label has come under criticism for its emotive connotations,
see, for example, Kirby J in Harriton v Stephens  HCA 15; (2006) 226 ALR 391 (HCA) at ; Joseph S Kashi, “The Case of the Unwanted Blessing: Wrongful Life” (1977) 31 U. Miami L. Rev.
1409 at 1432; Allan F Hanson, “Suits for Wrongful Life: Counterfactuals and the Non- existence Problem” (1996) 5 S. Cal. Interdisc. L. J. 1 at 9,23; David Hirsch, “Rights and Responsibilities in wrongful birth, wrongful life cases”  UNSWLawJl 28; (2006) 29 U.N.S.W.L.J. 233 at 235; Dean Stretton “The Birth Torts: Damages for Wrongful Birth and Wrongful Life”  DeakinLawRw 16; (2005) 10 Deakin L. Rev. 319 at 348.
3 Twenty-four states in the US have denied the claim, for the comprehensive list see
Kirby J’s judgment in Harriton v Stephens at n 102. See also McKay v Essex Area Health Authority  QB 1166 (CA) (Hereafter McKay); JU v See Tho Kai Yin  4 SLR 96 (HC of Singapore); Lacroix v Dominique  DLR (4th) 121 (ManCA). The claim has however been recognised in three state jurisdictions in the US, see Turpin v Sortini 182
Cal.Rptr. 337 (Cal 1982); Harbeson v Parke-Davis Inc 656 P.2d 483 (9th Cir 1983); Procanik v
Cillo 97 N.J 339 (NJ 1984). See also, Zeitzov v Katz
(1986) 40 PD 85 (Supreme Court of
Harriton v Stephens 4 has undertaken a comprehensive
examination of the viability of the action, and the decision provides an
excellent platform from which
to discuss the intrinsically intertwined
issues of law and policy that the proposed claim involves. Kirby J’s
dissent in Harriton does reveal the inherent weaknesses of
some of the proposed policy objections to the claim and indicates that
aversion to the action, arising from some of the supposedly
intractable concerns of policy, has been significantly overstated. However,
is apparent that the majority judgment must ultimately prevail. Both the
inability of the claim to fall neatly within the defined
parameters of the
framework of the tort of negligence, and the significant policy
implications of such an action,
ultimately outweigh the perceived
injustice of denying financial recovery to a plaintiff whose life with
disabilities is attributable
to a doctor’s negligence.
A. The wrongful life claim and Harriton v Stephens; Waller v
It is important at the outset to distinguish a claim for wrongful life
from the related tortious action of “wrongful birth.”
action for wrongful birth involves a parental claim for damages arising from an
unwanted birth caused by medical negligence,5 the wrongful
life action is conversely premised on a claim by a disabled child alleging
that but for the negligence of a medical
practitioner he or she would not have
been born. The claim is usually generated by misconduct such as inadequate
or a doctor’s failure to detect foetal
abnormalities,6 and the High Court of Australia was granted the
opportunity to examine the feasibility of the action in the joint
Israel); Perruche judgment, Cass.Ass.Plen, 17.11.00,J.C.P. G2000 11-10438, 2309 (Cour de
4  HCA 15; (2006) 226 ALR 391 (hereafter Harriton).
5 The High Court of Australia has allowed recovery of the costs of bringing up a healthy child in Cattanach v Melchior  HCA 38; (2003) 199 ALR 131, in contrast, the House of Lords rejected the claim in McFarlane v Tayside Health Board  UKHL 50;  3 WLR 1301. However, in Parkinson v St James and Seacroft University Hospital NHS Trust  EWCA Civ 530;  QB 266 the English Court of Appeal allowed the recovery of expenses arising specifically from a child’s disability. See generally Stephen Todd, “Wrongful Conception, Wrongful Birth and Wrongful Life”  SydLawRw 9; (2005) 3 Sydney L. Rev. 525 at 527-537.
6 Christopher J Grainger, “Wrongful Life: A Wrong Without a Remedy” (1994) 2 Tort
Law Review 164 at 164. In Harriton, the misconduct involved a failure
to detect in-vitro exposure to rubella antibodies.
of Harriton v Stephens and Waller v James.7 The
governing principles of law were delivered in Harriton, in which the
claim was rejected by a 6:1 majority. Crennan J delivered the leading judgment
(which was adopted by Gleeson CJ, Gummow
and Heydon JJ) while separate majority
judgments were delivered by Hayne and Callinan JJ. In their denial of the claim
judgments were clearly influenced by the stringent
requirements of legal principle. In contrast, Kirby J, as the sole
dissentient, delivered a forceful judgment that was clearly impelled by the
perceived imperatives of social justice. It is clear
that the fundamental
issues to be considered in determining the action’s viability
are whether the claim can fall
within the defined boundaries of the negligence
framework, and whether issues of policy propel or repel recognition of the
These are discussed in turn.
B. Existence of a Duty of Care
While the recognition of a duty to take care is the key element of an action
in negligence,8 in wrongful life jurisprudence the issue as
to whether a duty can be recognised has not proved to be a pivotal
concern for a number of jurisdictions.9 This particular issue was
briefly dispensed with by Crennan J in Harriton. Her Honour simply held
that a duty of care was unable to exist as the particular damage claimed by the
appellant was not legally
cognisable.10 It is thus clear, as Grey
notes, that for the majority the issues of duty and damage were intrinsically
linked.11 Such reasoning meant that Crennan J did not
need to determine the duty issue pursuant to the policy implications
arising from the recognition of a duty. However, as her Honour did in fact
give “consideration” to these issues
of policy,12 this
will be explored separately in the examination of policy below. In
contrast to the conflation of the issues of duty
and damage favoured by
Crennan J, Kirby J warned against the unnecessary lifting of
7  HCA 16; (2006) 226 ALR 457 (hereafter Waller). In Waller, the misconduct involved negligent advice about genetic defects.
8 Grant v Australian Knitting Mills Ltd  AC 85 (PC).
9 See the discussion of Anthony Jackson, “Action for wrongful life, wrongful pregnancy
and wrongful birth in the United States and England” (1995) Loy. L.A. Int'l & Comp. L.J.
535 at 563; Grainger, above n 6, at 167.
10Harriton, ,above n 4,, at .
11 Alice Grey, “Harriton v Stephens: Life, Logic and Legal Fictions”(2006) 28 Sydney L.
Rev. 545 at 549.
12 Harriton, ,above n 4,, at .
consideration into the judicial determination of whether a duty of care
existed.13 This analysis enabled Kirby J to assert that as the
prerequisite element of foreseeability existed between the medical practitioner
and the foetus, the duty owed to the appellant fell within the scope of the
established duty of care to prevent pre-natal injuries.14 It is
indeed clear that a consideration of the nature of damage is better confined to
the damage inquiry alone as the conflation
of the issues of damage and duty does
appear to “subvert the traditional structure” of the cause of action
and to “threaten the continued relevance” of the
duty consideration.15 Therefore, the complexities arising from
the recognition of legally cognisable loss in a wrongful life claim should not
the duty of care issue. However, contrary to what
Stretton has argued,16 this finding in itself does not entail that
the duty issue is concluded. As the duty element of the negligence framework is
policy driven,17 the policy implications surrounding the
recognition of the duty are of fundamental importance. These concerns will be
As Belsky writes, seldom has a potential lack of causation played a
“decisive role” in the judicial denial of the wrongful life claim.18
However, owing to the medical reality that the physician is not himself
responsible for the creation of the child’s
pertinent question is raised as to what damage the physician’s negligent
conduct can be regarded to have
caused. In Harriton this difficulty was
13 Ibid, at –.
14 Ibid, at –. Hayne J also favoured this analysis, ibid, at .
15 Kirby J, ibid, at , see also Neindorf v Junkovic  HCA 75;  222 ALR 631 at 643–646; John
G Fleming, The Law of Torts (4th ed 1998) at 117–118.
16 Dean Stretton, “Harriton v Stephens, Waller v James: Wrongful Life and the logic of non-existence”  Melb. U.L. Rev. 972 at 981.
17 See, for example, South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd  2 NZLR 282 (CA), at 293-294 per Cooke P, at 305-306 per Richardson J, at 312 per Casey J and at 293-294 per Hardie Boys J; Rolls Royce New Zealand Ltd v Carter Holt Harvey Ltd  NZCA 97;  1 NZLR 324 (CA) at . See generally, Todd The Law of Torts in New Zealand (5th ed, 2009) at 139-142, Fleming above n15 at 153-154, W.V.H Rodgers, Winfield and Jolowicz on Tort (17th ed, Sweet and Maxwell, London 2006) at 111-
18 Alan J Belsky, “Injury as a Matter of Law, is this the answer to the Wrongful Life
Dilemma?” (1993) 22 U. Balt. L. Rev. 185 at 220, see also Timothy J. Dawe “Wrongful
Life: Time for a Day in Court” (1990) 51 Ohio St. L.J. 473 at
by the appellant’s formulation that the medical practitioner
was responsible for the creation of a “life
disabilities.”19 If it is accepted that “life with
disabilities” can constitute damage (as discussed below) it is
there should be no real difficulty in establishing
causation. The judicial treatment of causation has recently become
marked by an
increasingly liberal attitude,20 and thus this requirement of the
negligence framework should not of itself provide an impediment to the
recognition of the claim.
As Kirby J argued, the appellant would not have been
born had it not been for the physician’s negligent conduct in failing
inform the appellant’s mother of risks to the foetus.21 Thus,
this negligence can indeed be viewed to have been a cause of the
appellant’s “life with disabilities.”22 However,
as noted by Hayne J, the establishment of causation will also be dependent
upon the mother’s confirmation that upon
the receipt of the requisite
advice she would have elected to abort the foetus.23 Admittedly, the
need for this subjective determination, although not uncommon in tort/delict
cases, may create difficulties,
as the judiciary could be required to
determine the reliability of the patient’s testimony.24
However, the potential need for a subjective determination should not in
itself result in a finding of lack of causation.
The House of
Lords has acknowledged that the judicial establishment of causation is
primarily concerned with “making
a value judgment on
responsibility,”25 and it is evident that the negligent
physician can easily be considered to be responsible for the plaintiff’s
19Harriton, above n 4, at .
20 See, for example, Kuwait Airways v Iraq Airways Co  UKHL 19;  2 AC 883 (HL), Fairchild v
Glenhaven Funeral Services Ltd  UKHL 22;  1 AC 32 (HL), as noted by Margaret Fordham, “A Life Less Ordinary: The rejection of actions for Wrongful Life” (2007) 15 TLJ 123 at 133, see also Harvey Teff, “Condoning Wrongful Suffering” (2007) 15 Torts Law Review 7 at
21Harriton, above n 4, at .
22 For further examination of this point see, Belsky, above n 18, at 221; Robert Lee, “To
be or not to be: is that the question” in Robert Lee and Derek Morgan (eds) Birthrights: Law and Ethics at the Beginnings of Life (Routledge, London, 1989) at 177; Grainger above n6 at 171; Philip Hersch “Tort Liability for Wrongful Life”  UNSWLawJl 8; (1983) 6 U.N.S.W.L.J. 133 at
136; Stretton, above n2, at 354, Stretton, above n16, at 994-995; Tony Weir, “Wrongful
Life: Nipped in the Bud”  C.L.J 225 at 226. In contrast, see McKay, above n 3, at
1181 per Stephenson LJ and 1188 per Ackner LJ.
23Harriton, above n 4, at .
24 Gisele Kapterian, “Harriton, Waller and Australian negligence law: is there a place for
wrongful life?” (2006) 13 JLM 336 at 344.
25 Kuwait Airways v Iraq Airways Co  UKHL 19;  2 AC 883 (HL) at 
per Lord Nicholls.
2. Ascertainment of Harm and Quantification of Damages
It is clear law that in order to succeed in a claim for negligence,
a plaintiff must have suffered legally cognisable
damage because of the
negligent conduct in question,26 and, if so, that his or her damages
are to be quantified pursuant to the compensatory principle established in
Livingstone v Rawyards Coal Co.27 Undertaking an
examination of the limited corpus of wrongful life jurisprudence, it
readily becomes apparent that
these well-established elements of
the negligence framework have proven to be significant obstacles towards the
recognition of the claim. In order to determine if a
plaintiff has suffered harm because of the defendant’s
the court must compare the “damage or loss caused by the negligent
conduct” with the plaintiff’s circumstances
negligent conduct.”28 The compensatory principle similarly
requires the court to compare the plaintiff’s current position with the
that the plaintiff “would have been in had he not
sustained the wrong.”29 In the wrongful life context a
strict application of these principles would require the court to delve
into the mysteries
of non-existence. It is therefore unsurprising that these
hurdles to recovery proved to be insurmountable for the majority in
At the heart of the wrongful life action lies the premise that life itself is
capable of being recognized to be a legal
ethical implications of such an assertion have proved to be troubling for many
judiciaries. In the earlier
stages of wrongful life jurisprudence, the
concept that life itself could constitute a loss was rejected pursuant to a
judicial belief in the preciousness” of life.30
The judicial refusal to recognise the essential element of harm was thus
closely entwined with considerations of public policy.
However, it is apparent
that as wrongful life jurisprudence developed, denial of the
26 J R Munday v London County Council  2 KB 311 (CA) at 334 per Lord Reading CJ;
Donoghue v Stevenson  AC 562 (HL) at 619 per Lord MacMillan.
27 Livingstone v Rawyards Coal Co  UKHL 3;  5 App Cas 25 (HL).
28 Harriton, above n 4, at .
29 Livingstone v Rawyards Coal Co above n27 at 39.
30 Gleitman v Cosgrove 49 N.J 22 (NJ 1967) at 31 per Weintraub J. See also Berman v Allan
404 A 2d 8 (1979), Stewart v Long Island College Hospital 296 NYS 2d
41 (NY 1968), Phillips v United States 508 F.Supp. 537 (U.S. Dist.Ct.,
of loss began to be based upon the grounds of logic alone.31
Such reliance on the strictures of legal principle to refute the
occurrence of harm is clearly evident in the majority judgments of
Harriton. As acknowledged by Crennan J, the evaluation of damage for a
wrongful life plaintiff would logically require a comparison between
with disabilities and non-existence. Arguing that such an evaluation was
simply “impossible” as there
is no present field of human learning
that would enable a person “experiential access” to
non-existence, it was
therefore held that the wrongful life action was unable
to be countenanced.32 Crennan J’s strong emphasis
that this “practical forensic difficulty” was a concern
from related policy objections33 revealed a
clear desire to highlight that denial of the action was founded upon the
stringent requirements of legal principle alone.
Sole reliance on the
rigid parameters of the negligence framework in order to justify
rejection of the claim was
also evident in the judgements of both Hayne
and Callinan JJ.34 The majority’s recourse to the
strictures of logic is undeniably forceful. One can validly question
loss has occurred if the limitations of human knowledge
mean that the purported damage is unable to be measured. Owing to the human
inability to evaluate and comprehend the concept of non-existence, an
intrinsic uncertainty exists as to whether it can
confidently be asserted
that an injury has occurred. How can a comparison ever assuredly be made when
one of the comparators is a
concept of which no knowledge exists? Such
difficulties do not lend themselves to an easy resolution.
These particular complexities were briefly dealt with by Kirby J in his
wider discussion as to the quantification of general
influenced by the apparent injustices occasioned by the refusal to
recognise the action,35His Honour was undeterred by the
perplexities raised by the recognition of damage. He reasoned that a life of
unremitting suffering” would unquestionably be worse
than non- existence, and because the judiciary was constantly concerned
31See, for example, Blake v Cruz 698 P 2d 315 (Idaho 1984); Smith v Cote 513 A 2d 341 (N.H 1986); Cowe v Forum Group Inc 575 NE 2d 63 (Ind.1991), JU v See Tho Kai Yin 
4 SLR 96.
32Harriton, above n 4, at -.
33Ibid, at .
34Ibid, at - per Hayne J), at  per Callinan J.
35 Ibid, at , , .
drawing, such a factual determination should not prove to
be excessively troubling. 36 The issue of loss was therefore seen
to pose little difficulty to the recognition of the action. Following this
reasoning of Kirby
J, it is apparent that the success of the action would
require judicial acceptance that non-existence can, in certain circumstances,
be a preferable alternative to a life of severe disabilities. This proposition
clearly faces the same logical hurdle that,
in the present fields of
intellectual understanding, such an assertion can only ever be based
upon pure hypothesis.
However, proponents of the action vigorously argue that
such a contention is by no means foreign to judicial thinking. In particular,
has frequently been asserted that such a judicial determination is often
required to be made in the discontinuation of medical
This argument is superficially persuasive. However, as noted by Crennan J,
this postulated analogy is inherently misconceived. Not
only is there a
fundamental difference in law, if not in ethics, between the passivity of
non-intervention and the active execution
of abortion, it is also apparent that
a “forensic establishment of damage” is not required in
cases.38 Little weight should therefore be placed
on what is essentially a misplaced analogy. However, Kirby J’s point must
that though the situations may not be analogous, they do indicate
that contemplations of non- existence are not unknown to judicial
Surprisingly, it has been the complexities arising from the requisite
application of the compensatory principle to quantify the plaintiff’s
purported damages, rather than the issue of the damage itself, that
have been at the forefront of the judicial debate
action.40 Logically, it would seem that a judicial
focus on the
36 Ibid, at  and .
37See for example Belsky ,above n 18, at 223-229; Grainger, above n 6, at 169; Kapterian,
above n 24, at 344; Derek Morgan and Ben White, “Everyday Life and the Edges of Existence: wrongs with no name or the wrong name?”  UNSWLawJl 29; (2006) 29 U.N.S.W.L.J. 239 at 245; Stretton, above n 16, at 987-989; Stretton, above n 22, at 357; Harvey Teff, “The Action for “Wrongful Life” in England and the United States” (1985) 34 Int'l & Comp. L.Q.
423 at 433-435; Jackson, above n 9, at 566, Weir, above n 22, at 228.
38 Harriton, ,above n 4, at , see also Re J (A Minor) (Wardship:Medical Treatment) 
Fam 33 (CA) at 46.
39 Ibid, n 4 at .
40 See, for example, Becker v Schwartz 413 NYS 2d 895 (NY 1978); Elliot v Brown 36a So 2d
546 (Ala. 1978); Kush v Lloyd 616 So 2d 415 (Fla. 1992); Speck v Finegold 408 A. 2d. 496
(Pa. 1979); Fordham, above n 20, at 134-135; Hanson, above n 2, at 16, Deana
Pollard, “Wrongful Analysis in Wrongful Life Jurisprudence”
55 Ala. L. Rev. 327 at 353.
quantification of damages is misplaced if damage itself is unable to be
identified. As noted by Robertson J in Nelson v Krausen41 any
discussion of damages is “purely gratuitous” as it presupposes that
the plaintiff has established the element of
J’s brief and separate treatment of the issues raised by the
application of the compensatory principle appears
to illustrate an implicit
acceptance of such reasoning. It can be accepted, as was acknowledged by
Crennan J, 43 that the general difficulty of quantifying
intangible loss should not of itself justify rejection of a claim. However,
J convincingly reasoned that there lies a fundamental distinction
between tasks of mere difficulty and tasks of pure
Her Honour argued that the application of the
compensatory principle would necessitate the same “impossible
that was required for the evaluation of the purported
loss, and thus damages were simply unable to be
quantified.44 Therefore, the established parameters of the negligence
framework once again hindered the claim’s recognition.
In contrast, Kirby J, clearly motivated by an underlying desire to
achieve social justice for a “victim of
was prepared to award both special and general damages for the
appellant. Seemingly influenced by the reasoning of the
US cases that
have allowed the claim, Kirby J proposed that special damages would be
recoverable as the appellant would
not have had any economic
needs if the respondent had exercised reasonable care.46 Kirby
J’s proposition that special damages should be awarded can well be
viewed as a judicial compromise between
the rigours of logic and
the perceived requirements of justice. At first glance the award of
special damages does
appear desirable, as the comparison between life with
disabilities and non-existence would be avoided. However, it is clear that
J’s analysis suffers from flaws. Although Kirby J asserts
that the impediment to awarding recovery
of special damages has
been “founded in policy considerations, not law,”47 a
compelling objection to Kirby J’s proposition ironically arises from the
logic of the law alone.
41 Nelson v Krausen 678 SW 2d 918 (1984).
42 Ibid, at 928.
43 Harriton, above n 4, at , see also Teff ,above n 39, at 435.
44 Ibid, at .
45 Ibid, at .
46 Ibid, at .
47 Ibid, at .
Kirby J’s analysis faces the same criticism that has been levelled at
the reasoning of US judges, namely that, in the absence
of a determination of
whether legally cognisable harm has been occasioned, the presence of financial
costs is not in itself adequate
to award damages.48 As Kirby J in
his discussion on special damages eschewed the issue of whether a loss had
occurred, his proposition in regards to
the award of special damages
therefore lacks persuasive strength.
In contrast to the approach of the US state jurisdictions, that have only
been prepared to award special damages in their recognition
of the wrongful life
action,49 Kirby J was undeterred by the difficulties surrounding the
award of general damages. Though admitting that the complexities raised
application of the compensatory principle, were the “principal”
argument50 in the respondent’s favour, his Honour ultimately
found this argument to be unpersuasive. Kirby J argued that the judiciary
well accustomed to assigning arbitrary values for “nebulous
losses,” and reasoned, relying on the discontinuation
analogy, that the valuation of damages could not be considered
to be an “impossible”
task.51 Significantly, such
reasoning was firmly founded upon His Honour’s insistence that there
should be limits to logic where a
conclusion that was “offensive to
justice” would otherwise result.52
In order for Kirby J’s assertions to be considered, it is first
necessary to accept that a life with disabilities can, in certain
be a fate worse than non-existence. Even if such a proposition were
hypothetically correct, difficulties still
arise with his Honour’s
reasoning in regards to the quantification of this purported damage. It can
be accepted that the
courts are frequently compelled to engage in a
48 See for example, David H. Pace “ The Treatment of Injury in Wrongful Life Claims” (1986) 20 Colum. J.L. & Soc. Probs. 145 at 156-158; Grey, above n 11, at 552-554; Nicolette M. Prilaux “Conceptualising Harm in the Case of the Unwanted Child” (2002)
9. J. Health L. 337 at 342. For a contrasting view see Kenneth A. Warner “Wrongful Life
Goes Down Down Under” (2007) 123 L.Q.R 209 at 211; Tom Faunce, “Abandoning the Common Law: Medical Negligence, Genetic Tests and Wrongful Life in the Australian High Court” (2007) 14 JLM 469 at 475.
49 Turpin v Sortini 182 Cal.Rptr. 337 (Cal 1982); Harbeson v Parke-Davis Inc 656 P.2d 483 (9th
Cir 1983); Procanik v Cillo 97 N.J 339 (NJ 1984).
50Harriton, above n 4, at .
51 Ibid, at , .
52 Ibid, at .
approximation of damages.53 However, as noted by Crennan J, the intangible injuries that require a rough approximation of damages normally fall within the scope of the judiciary’s common experience, or are alternatively apprehended through evidence led from medical experts.54 Problems clearly arise with a concept that falls outside the bounds of plausible contemplation. Proponents of the claim have confronted this troubling dilemma in a variety of ways. Two justices of the Israeli Supreme Court, allowing the claim in Zeitzov v Katz, 55 bypassed such complexities through the comparison of the disabled plaintiff with a hypothetical healthy child. Though such a construct has received some limited academic support,56 it is apparent that such judicial reasoning is inherently flawed. As Crennan J argues, this “awkward, unconvincing and unworkable legal fiction” would have the effect of holding the physician liable for disabilities which he did not cause.57 Furthermore, such a construct is inherently undesirable as it would entail compensatory provision for the lost opportunity of a life of health. Such an option clearly could never have been possible for a wrongful life claimant.58 Another argument that has gained some academic support is the postulation that the value of zero can be assigned to non-existence. It is accordingly proposed that, if the burdens of life outweigh the benefits, damages can be duly quantified.59
Such a supposition flounders for a variety of reasons. The assignment of
the value of zero to the state of non-existence
is faced by the
recurring logical quandary that, in the present state of human
knowledge, any value placed
on non-existence is a quintessentially
arbitrary figure. The enigma that is non-existence defies any such haphazard
at valuation. Therefore, it must be concluded that the judiciary will
be simply unable to quantify the wrongful life
53 See Fleming, above n 15, at 476; Teff, above n 37, at 435; Jackson, above n 9, at 570.
54Harriton, above n4, at .
55 Zeitzov v Katz (1986) 40 (2) PD85 (Supreme Court of Israel), discussed in David Heyd,
“Are ‘Wrongful Life’ Claims Philosophically Valid? A Critical Analysis of a Recent Court
Decision” (1986) 21 Isr. L. Rev. 574.
56 Amos Shapira, “Wrongful life lawsuits for faulty genetic counselling: Should the impaired newborn be entitled to sue?” (1998) 24 Journal of Medical Ethics 372 at 374.
57Harriton, ,above n 4, at  see also Carel J.J.M Stolker, “Wrongful Life: The Limits of
Liability and Beyond” (1994) 43 Int'l & Comp. L.Q. 521 at 531.
58 See Priaulaux ,above n 4 at 8, 342; Todd, above n 5, at 541.
59 See Dawe, above n 18, at 496-497; Stretton, above n 16, at 993.For a slight variation of
this argument which posits that any value can be assigned to non-existence,
see, for example, Grainger, above n 6, at 173; Teff, above
n 37, at
plaintiff’s damages, or, more importantly, to recognise that a life
with disabilities can constitute a legally cognisable loss.
Without doubt, the difficulties posed by the nature of loss in a
wrongful life claim, and by the application
of the compensatory
principle, are considerable, and the contrast between the majority’s and
Kirby J’s treatment of
these issues is significant. The majority’s
recourse to legal principle in their denial of the claim differs greatly from
J’s strong emphasis on the requirements of underlying policy to
justify the claim’s recognition. The determination as
to whether damage is
able to be legally recognised and quantified can therefore be formulated as a
struggle between the rigours
of legal principle against the ideals of
social justice. The inability of the proposed action to fall neatly within the
of the established negligence framework does indicate that the
tools of the common law are ill-equipped to deal with such a
Therefore, in order for damage to be recognised, a judicial
manipulation of the well-established principles of negligence law
required. We must then question whether such an extension, which would create an
undesirable incoherence in the law, could
be validated by the supposed
injustices which denial of the claim effects. The English Law Commission
has emphasised that
if the grounds of policy compel recognition of the claim,
judicial reliance on the strictures of logic should not constrain
Action’s success.61 Such sentiments have also been echoed
in a variety of judicial pronouncements.62 It is accordingly
necessary to turn to the arguments of policy that have been employed to justify
both recognition and rejection
of the wrongful life claim.
1. Sanctity of Life and Devaluation of the disabled.
While Crennan J’s denial of the wrongful life claim in
Harriton was firmly founded upon the intrinsic impossibility of
60 McKay, above n 3, per Griffiths LJ.
61 English Law Commission, Law Commission Report on Injuries to Unborn Children (Law
Com.No.60 1974) at 89.
62 See for example, McKay, above n 3, at 1188 per Stephenson LJ; Procanik v Cillo 97 NJ
339 (NJ 1984) at 351 per Pollock J; Curlender v Bio-Science Laboratories 165 Cal Rptr 477 (Cal
1980) at 488; Harriton, above n 4, at  per Kirby
her Honour did concede that concerns of policy lent support to the
rejection of the action.63 Unsurprisingly, considerations of
policy have always played an integral role in the denial of the wrongful life
claim. A judicial
determination that non-existence would be preferable to a
life with disabilities inevitably raises questions as to the proposed
human life, and has the potential to occasion significant societal
revulsion. The pronounced judicial unease
that has surrounded the action
has primarily been attributable to the fear that the recognition of the claim
would offend the
deeply held societal belief in the sanctity of human
life.64 It is however apparent that this once inviolable notion has
been weakened by the increasingly liberalised judicial and legislative
of the laws concerning abortion, withdrawal of medical treatment, and
suicide.65 Two questions thus arise. First, does
recognition of a wrongful life claim result in a further “inroad on the
of human life”?66 Second, if this is the case, does
the changing nature of our legal and social mores mean that such a result can
now be countenanced?
It can be readily accepted that the wrongful life action does not demand a
remedy of specific performance- a remedy that would necessitate
plaintiff’s death.67 However, contrary to the assertions of
some commentators68 this does not in itself justify the
assertion that the
63 Harriton, ibid, at .
64See, for example, McKay, above n 3, at 1180-1181; Gleitman, above n 31, at 31; Philips,
above n 31, at 534; Berman v Allan 404 A 2d 8 (NJ 1979) at 12-13
65 See the discussion in Margaret Fordham, “A Life without Value”  Sing J. Legal Stud.395 at 400; Teff, above n 37, at 431, Morgan and White, above n 37, at 249, Pollard, above n 40 at 330, Mark Strasser, “Wrongful Life, Wrongful Birth, Wrongful Death, and the Right to Refuse Treatment; Can Reasonable Jurisdictions Recognise All But One?” (1999) 64 Mo. L. Rev 29 at 75. On the doctrine generally see, Glanville Lleweyln Williams, The Sanctity of Life and The Criminal Law (Konpf, New York, 1957); Peter Singer, Rethinking Life and Death: The Collapse of Our Traditional Ethics (Text Publishing, Melborune
66 McKay, above n 3, at 1180 per Stephenson LJ.
67 Stolker, above n 57, at 525.
68 See, for example, Grainger, above n6, at 168,173; Jackson,
above n9, at 569; Anne Morris and Severine Santier, “To Be or Not
Is that the Question? Wrongful Life and Misconception” (2003) 11 Med Law
Rev 167 at 180; Strasser, above n 65 at 40;
Teff, above n 37 at 434, Michael B
Kelly, “The Rightful Position in Wrongful Life Actions” (1991) 42
Hastings L.J 505 at 541; James Bopp, Barry A. Bostrom and Donald A. McKinney,
“The ‘Rights’ and ‘Wrongs’ of Wrongful
Wrongful Life: A Jurisprudential Analysis of Birth Related Torts” (1989)
27 Duq. L. Rev. 461 at 504; Fordham, above n 20, at 138.
sanctity of life doctrine is left unviolated by recognition of the claim. A
judicial acceptance that non-existence can be
considered to be
preferable to life does threaten the sanctity or inviolability of life
principle. Though Kirby
J asserts that no threat is posed to the
doctrine, as the claim is premised on a life of suffering,69 there
is clearly no basis to ignore the reality that the wrongful life plaintiff is
seeking recompense for a negligent action which
has led to the creation of a
life. This has led to both the academic and judicial assertions that the
conduct can only ever be viewed as having
conferred a benefit upon the plaintiff.70 Such a
sentiment is encapsulated by Griffith LJ’s proposal in McKay v
Essex Area Health Authority71 that there should be
“rejoicing” over the hospital’s mistake that bestowed
upon the plaintiff the gift
of life.72 While it is
incontestable that the sanctity of life principle remains a fundamental tenet
of the law,73 this principle, as noted by Kirby J, has
become subject to a number of qualifications.74 Indeed, Crennan
J’s acknowledgement of the judicial pronouncement in
Cattanach v Melchior75 that life is no longer always to
be viewed as a “blessing”76 arguably indicates an
acceptance that the concept of life as an unqualified benefit no
longer pervades judicial
thinking. Therefore, though it can be accepted that
the wrongful life claim does present a threat to the sanctity of life doctrine,
it is apparent that the doctrine is no longer treated as the moral absolute that
it once was.
Though Crennan J placed little emphasis on the sanctity of life doctrine
itself, her Honour did place strong emphasis on the
objection which posits that recognition of the claim effectively amounts to a
devaluation of disabled life. The
supposition that the recognition
69Harriton, above n 4, at , see also, Curlender v Bio-Science Lab 165 Cal. Rptr. 477 (1980) at 488; Morris and Santier ibid, at 8.
70 See, for example, Berman, above n 30, at 12-13,Gleitman, above n 30, at 31, Penny
Dimopoulos and Mirko Bagaric “The Moral Status of Wrongful Life Claims” (2003) 32
Comm. L. World Rev. 35 at 55, Stephen Todd, “Review: Tort” NZ L. Rev. 793 at 802.
71 Above n 3.
72 Ibid, at 1193.
73 See, for example, s 8 Bill of Rights Act 1990, Art 6.1 International Covenant on Civil and Political Rights 1966.
74 Harriton, above n 4, at . See also above n 68.
75 Cattanach v Melchior  HCA 38; (2003) 199 ALR 131 (HCA).
76Harriton, above n 4, at  referring to Cattanach ibid, at  per McHugh and
Gummow JJ, at - per Kirby J, at - per Hayne
of the wrongful life action equates to a judicial acceptance that
a disabled life lacks any sense of worth has pervaded
both judicial and
academic discourse,77 and this concern was evident in Crennan
J’s judgment. Arguing that the action’s implicit
the disabled appellant would have been better off not to
have been born was “odious and repugnant,” Crennan J forcefully
posited that there was no evidence that the appellant could not experience
pleasure or find life rewarding.78 In contrast to Crennan J’s
belief in the repugnance of the claim, Kirby J argued that the recognition of
the action would conversely
provide a form of “practical
empowerment” for the plaintiff. 79 This empowerment, it
was espoused, would be occasioned through a much needed financial injection
granting the appellant access to
greater opportunities in life. The positions
of the two judges were thus diametrically opposed.
At first sight Kirby J’s analysis does appear compelling. It is clear
that the financial injection provided by an award of damages
would give the
wrongful life plaintiff the opportunity to access services and care that may
not be adequately provided for by the
State.80 Moreover, as Teff
writes, provision of State financial aid for the disabled is not viewed as
morally offensive, and there is
thus no reason why financial relief
provided through an award of damages should instigate any societal
opprobrium.81 However, it must be conceded that when the nature of
State financial provision is compared with the damages awarded under a wrongful
life claim, a fundamental disparity between the differing monetary provisions
emerges. The provision of State compensation is not
dependent on the morally
fraught determination that non-existence
77 See for example, McKay, above n 3, per Stephenson LJ at 1180-118, Wendy F. Hensel, “The Disabling Impact of Wrongful Birth and Life Actions” (2005) 40 Harv. C.R.-C.L. L. Rev. 141 at 174-176, 194-195 Therese M Lysaght, “Wrongful Life, The Strange Case of Nicholos Perruche”  Human Life Review 165 at 168-169, Todd, above n70, at 801, Dimpoulos and Bagaric, above n 70, at 53, Kathleen Gallagher “Wrongful Life: Should the Action be Allowed?” (1987) 47 La. L. Rev 1319 at 1326.
78Harriton, above n 4, at  and . For commentary on the positive aspects of
disabled life, see Adrienne Asch, “Disability Equality and Prenatal Testing: Contradictory or Compatible?” (2003) 30 Fla. St. U. L. Rev. 315 at 332; Hensel, above n 77, at 185-186.
79 Ibid, at .
80For acknowledgment of the gaps in State provisions see, Office for Disability Issues
Work in Progress 2009: The Annual Report From the Minister for Disability Issues to the House of Representatives on Implementing the New Zealand Disability Strategy (2009) at 3; Goggin G, and Newell C, Disability in Australia: Exposing a Social Apartheid (2005) at 63-71.
81 Teff, above n 37, at 438.
would have been preferable to the recipient’s life. Therefore,
though the provision of State funds for the disabled is not
seen to devalue the
disabled, it must be emphasised that this financial provision cannot be
considered analogous to the damages awarded
under the wrongful life action.
Moreover, though advocates of the action espouse that the provision of damages
equates to a tangible
demonstration of judicial compassion for the
plaintiff,82 such emotive pronouncements lack merit. As
Dimopoulos and Bagaric reason, the judicial sentiment of sympathy for a
not a prerequisite for an award of compensation.83
Finally, Kirby J’s declaration that the action can be viewed
as a form of liberation for the disabled is also weakened
evidence that disabled members of society regard the claims as far from
empowering. The formation by disabled persons
in France of “the
Collective to stop discrimination against the disabled,” in
response to the Cour de Cassation’s recognition of the claim in
Perruche,84 illustrates that the some of those whom Kirby J
asserts can be assisted by the claim are in fact deeply offended by the moral
of its prospective success.85 This negative reaction
serves to illustrate that a deep gulf exists between Kirby J’s well
formulated arguments of
principle and the reality that the logical
foundation upon which the claim is premised is considered to be
insulting by those whom it seeks to protect.
2. Implications of the recognition of a duty to take care
The duty element of the tort of negligence often involves a
“wide- ranging inquiry into matters of policy,”86 and it
is apparent that judicial consideration of the duty of care in the
wrongful life setting has operated as a
“mechanism for the
introduction of normative concepts.”87 The pervasive
influence that concerns of policy have had on the duty consideration was
clearly reflected in Stephenson LJ’s
82 See, for example, Booth and Ballantyne “High Court shuts out wrongful life claims” (2006) 80 Law Institute Journal 40 at 43, Faunce, above n 48, at 477, Stretton, above n2, at 362, Jackson, above n 9, at 578-579, 611.
83 Dimopoulos and Bagaric, above n70, at 54.
84 For discussion of the case and its consequences, see Ewing, “The Perruche Case” (2002) J. Law & Fam. Stud, 317, at 318-319; Morris and Santier, above n 68, at 185-188, Lysaught, above n 77, at 165-169.
85 As noted by Todd, above n 72, at 802.
86 Todd above n17 at 140.
87 Kapterian, above n 24, at 343.
surmise in McKay that the recognition of a duty to take
care was untenable as the duty owed to the foetus would equate to a
abort or kill.”88 Such a supposition, which is
closely entwined with the judicial fear of encroachment upon the sanctity of
life doctrine, is unfounded.
As noted by Kirby J in Harriton, there is
no legal right in existence which enables a medical practitioner to compel a
mother to undergo an abortion.89 Hence, the “duty to
kill” proposition is misconceived. However, this leads us to the
question as to what the proposed
duty of care owed by the medical practitioner
to the foetus would entail. Kirby J’s adaptation of Griffiths
formulation in McKay, that the duty of care owed would be to
advise of risks to the foetus in order to grant the mother the opportunity of
electing a termination
of the foetus,90 seems sound. It is evident
that in light of the current laws surrounding abortion, the scope of the duty
could not feasibly include
a duty to take a life. This proposed
objection is therefore inherently weak.
A policy objection of greater significance is the potential implication
that judicial recognition of the duty could lead to a
correlative duty of care
owed to the foetus being imposed upon a mother. Such a duty would be breached
if, upon the receipt of
medical advice that the foetus is likely to be disabled,
the mother declined to have an abortion and elected to continue the pregnancy.
Although a prospect of such a filial action in these circumstances has been
considered to be acceptable by one US state jurisdiction,91
it has generally been received with pronounced disfavour in
both judicial and academic discourse.92 The
88 McKay, above n 3, at 1178 per Stephenson LJ.
89Harriton, above n 4, at . See also Jackson, above n 9, at 553, Dimpoulos and
Bagaric, above n70, at 52, Hersch, above n 22, at 139. It must be noted that the right to refuse medical procedures is stated in s11 New Zealand Bill of Rights Act 1990. For the common law, see Smith v Auckland Hospital Board  NZLR 191 (CA); Re T  EWCA Civ 18;  Fam 95; Re B  EWHC 429;  2 All ER 449 (HC).
90 Ibid, at -. Slight variations of this proposed duty have been widely endorsed by commentators, see, for example, Morgan and White, above n 37, at 244; Shapira, above n 56, at 370; Jackson, above n 9, at 554; Morris and Santier, above n 68, at 177; Grainger, above n 6, at 166; Dimopoulos and Bagaric, above n 70, at 52; Hersch, above n22, at 140.
91 Curlender, above n 62, at 488.
92 See for example McKay, above n 3, at 1181 per Stephenson LJ; Jackson, above n 9, at
554; Morris Ploscowe “An Action for Wrongful Life” (1963) 38 N.Y.U. L. Rev. 1078 at
1080; Belsky, above n18, at 240-243; Hensel, above n77, at 179-180. In contrast see
Dimpoulos and Bagaric, above n 70, at 44 .
significant judicial unease surrounding the prospect of this filial action
was acknowledged and endorsed by both Crennan and Callinan
However, although the implications of a potential tortious action
against the mother are generally regarded to be
insupportable, it must be emphasised that Kirby J’s well argued dissent
reveals some flaws of this proposed policy
objection. As his Honour argues
the deep-seated concern about the potential risk of familial fracture
appears to overlook
the fact that the underlying motivation which lies
behind the action is a desire for monetary gain.94 As tortious
actions are normally driven by the existence of “deep-pocketed
defendant[s],”95 it is very unlikely that an action
against the mother would fulfill this desire for financial reward.
as the plaintiff in a wrongful life action is typically a
“profoundly disabled” infant,96 it is generally the
parents of the child who instigate the wrongful life suit.97
This must also weaken the proposed objection for, as Fordham notes, it is
highly improbable that a mother would bring a claim against
The most compelling argument facing the policy objection concerns the
paramountcy which the law accords to the rights of
autonomy and bodily
integrity of potential mothers. As Kirby J argues, not only would these rights
mean the nature of the maternal-
foetal relationship would be different from
the doctor-foetal relationship, but they would also entail, if a duty was
recognised, that the judiciary would be most reluctant to hold
such a duty had in fact been breached.99As Mussell and others write,
the autonomy of potential mothers is currently a “sovereign”
principle of the law.100 Thus, although inter-familial torts have
been recognised by
93Harriton, above n 4, Crennan J at , Callinan J at .
94 Ibid, at .
95 Keith Mason “Fault, Causation and Responsibility: Is Tort Law Just an Instrument of Corrective Justice?” in Ian R Freckleton and Danuta Mendelson (eds) Causation in Law and Medicine (Ashgate Publishing Company, Aldershot, 2002) at 145.
96 Harriton, above n4, at .
97 For example, in both Harriton v Stephens; Waller v James the actions were brought by the parents of the appellants. This was also the case in Perruche, see Lysaught, above n77, at
98 Fordham, above n20, at 143, see also Stretton, above n 16, at 983.
99 Harriton, above n 4, at -. See also Morgan and White, above n37, at 244, Rosamund Scott “Maternal Duties to the Unborn? Soundings from the Law of Tort” (2000) 8 Med. L. Rev. 1 at 68.
100 Veronica English, Rebecca Mussell, Julian Sheather, andAnn
the common law,101 it is apparent that exceptions have been made
for expectant mothers.102 Therefore, in our current legal settings,
where the judiciary is loathe to interfere with the maternal-foetal
relationship, it is
apparent that this proposed risk of a filial action is
Perhaps the most pressing issue of policy in regards to the duty owed by the
physician arises from the complexities surrounding the
nature of the
child’s interest which the duty of care would serve to promote. As
previously discussed, the duty can never
be formulated as a duty to abort.
However, the duty owed does require competent advice to be given to the
mother about potential
risks to the foetus, in order for the opportunity to be
given to the mother to abort in the foetus’s interests. Thus, as noted
Crennan J, the judicial recognition of a duty of care, would logically entail
the common law’s recognition of an “interest
of a foetus in its own
termination.”103 Placing the ethical implications of such
an interest to one side, it should be noted that the child’s interest can
promoted through the mother herself, pursuant to her informed decision
to abort.104 This raises difficulties, for as acknowledged by
Crennan J, the court is not able to “infer from a mother’s
decision to terminate, that her decision is in the best interests of the foetus
which she is carrying.”105 It is clearly apparent, as noted in
Becker v Schwartz106 that abortions are often undertaken for
purely self- regarding motives.107 Thus, it may be hard to deduce
that the decision to abort an impaired foetus has been made to promote its
and Its Limits: What Place for the Public Good?” in Sheila McLean (ed) First Do No
Harm: Law, Ethics and Healthcare (Ashgate, Aldershot, 2006), see also Scott, ibid, at15-19.
101 See, for example, Hahn v Conley  HCA 56; (1971) 126 CLR 276.
102 See, for example, Dobson v Dobson  2 SCR 753 (maternal immunity from negligent driving that injured the foetus); Winnipeg Child and Family Services (NorthWest Area) v G (DF)  3 SCR 925 (maternal immunity from lifestyle choices that could affect the foetus). For favourable comment on these decisions, see generally, Scott above n99 at 35-42 Todd n17 at 298-299. However, it must be noted an action against the mother for negligent driving causing pre-natal injury has been recognised in two Australian cases, Lynch v Lynch (1991) 25 NSWLR 411 (NZWCA); Bowditch v McEwan  QCA 172.
103 Harriton, above n 4, at .
104 Shapira, above n 56, at 370.
105 Harriton, above n 4, at .
106 Becker v Schwartz 386 N.E 2d 807 (NY 1978).
107 Ibid, at 815.
108 See Todd, above n 70, at 802, Raanan Gillon, “Wrongful Life Claims” (1998) 24
Journal of Medical Ethics 363 at 364; Kelly, above n 68, at 546-547; Harriton v Stephens
 NSWCA 93; (2004) 59 NSWLR 694 (NSWCA) at 742-743 per Ipp JA.
Although even a self-regarding motive does not of itself preclude some
incidental benefit to the foetus, it must inevitably be asked
whether any such
interest can validly be recognised. Proponents of the action attempt to
refute such concerns, by proposing
that a potential mother’s choice to
abort stems from the primary concern about the welfare of potential offspring
and an intuitive
instinct to act in the best interests of the foetus.109
While it would be desirable to think that such assertions, which
generously paint potential parents in the most philanthropic of
reflect the underlying motivation for the election of abortions,
it would be naïve to consider
that this proposition accurately reflected
reality. This therefore brings us to the conclusion that Crennan
concern about the potential conflict which would occur between
the duty owed to the mother and the duty owed to
is well justified. Although Kirby J argues that such reasoning would
logically apply to the duty owed to prevent pre-natal injuries,111
his Honour does not adequately deal with the profound distinction
which exists between the two duties. The responsible conduct
of a physician in
the pre-natal injury context results in a healthy child, while responsible
conduct in the wrongful life context
results in a foetal abortion.112
Thus, though Kirby J’s argument may appear initially persuasive, it
is, upon closer examination, flawed. The potential conflict
between duties is
indeed a cause for considerable concern.
3. The prospect of actions for “minor defects”
A pertinent concern of policy for the English Court of Appeal in McKay
was the possibility that recognition of the wrongful life action could
lead to actions brought by children with “trivial
abnormalities”.113 This apprehension was reflected in
Crennan J’s assertion that there was a lack of certainty about the
class of persons
to whom the duty was owed.114 Kirby J did
acknowledge that actions for minor defects were possible because minor
injuries are not apprehended as categorically
109 See Belsky, above n 18, at 229, Shapira, above n 56, at 370, Jackson, above n 9, at 533, Morris and Santier, above n 68, at 179, Schoordjk cited in Stolker, above n 57, at 527.
110 Harriton, above n 4, at . For commentary on the undesirability of such conflict see
generally, Robert Blank and Janna C. Merrick, Human Reproduction, Emerging Technologies, and Conflicting Rights (CQ Press, Washington D.C., 1995), Scott above n99.
111 Ibid, at . For the scope of this duty, see Watt v Rama  VicRp 40;  VR 353 (VSC).
112 This point is well made by Ipp JA in Harriton v Stephens, above n108 at 741-742.
113 McKay, above n 3, at 1180-1181.
114 Harriton, above n4, at .
different in ordinary personal injury cases.115 However, his Honour argued that there were “insuperable practical hurdles” threatening the success of such actions for “minor defects.” One of these hurdles was the impossibility of showing, under the compensatory principle, that non-existence would be preferable to a life with a minor defect.116
Undoubtedly, an action brought by a plaintiff with a minor disability
would fail in light of the inability to prove that non-existence
been the desired alternative. However, it is this very proposition which brings
us to a fundamental policy objection
to the claim. While we can accept that
non-existence is not to be preferred to a life with a minor disability, the
arises as to what point a disability ceases to be
a “minor defect” and is capable of being recognised
one which results in “severe and unremitting
suffering,”117 rendering the prospect of non-existence to be
formulated as the preferred alternative. The necessity for the judiciary to
the spectrum of disabilities that could be considered to render life
to be a worse fate than non-existence is a task that cannot
with any equanimity.118 Kirby J rightly acknowledges that the
judiciary is frequently engaged in the task of line-drawing, and it can be
accepted that the
law is replete with grey areas. Yet, no guidance is given in
the judgment as to how such a precarious line is to be drawn. As
it would appear that Kirby J would make this determination based upon a
value judgment alone.119 Such a value judgment, though, would
arguably be so “crude and speculative,”120 that it can
reasonably be questioned whether the judiciary should be required to engage
in this line drawing in the first place.
We are brought back once again to the
fundamental objection that the judiciary is essentially ill-equipped to explore
nature of non-existence. It can be asked how it would ever be
possible to determine the severity of disabilities that
life to be a fate worse than non-existence when the concept of
non-existence itself lies beyond human comprehension.
115 Ibid, at .
116 Ibid, at .
117 Ibid,at .
118 See Hensel, above n 77, at 181-182; Todd above n5 at 540; Speigelman CJ in Harriton v
Stephens ,above n 108, at 702.
119 Grey, above n 11, at 553.
120 Dimpoulos and Bagaric, above n 70, at 63.
4. Deterrence and Corrective Justice
Normative appeals to the deterrent function of the law of tort are often
employed to support the wrongful life claim.121 Such reasoning was
certainly evident in Kirby J’s judgment when his Honour asserted that the
rejection of the action would offer
no legal deterrent to professional
carelessness and irresponsibility.122 Difficulties arise with such
an argument. As Todd writes, one can point to many negligence cases
where the Judiciary has
employed the deterrence argument to either favour
or disfavour the imposition of a duty, and there appears to be no principled
basis which lies behind the judicial choice to reject or rely upon this policy
argument in such cases.123 Accordingly, it is wrong to claim that
the deterrence argument holds any unique significance in the wrongful life
it is apparent that such reasoning can be employed at the
judiciary’s whim to support the recognition of any
of care. Moreover, while it is clear that deterrence of negligent medical
conduct is a laudable objective,
it is questionable whether this
objective would be satisfied by the recognition of the claim. It must
first be emphasised
that the general effectiveness of the deterrent policy of
the law of tort has been questioned, as it is unclear whether the prospect
of tortious liability impacts on behaviour generally.124
Furthermore, it is an insurance company that generally bears the
brunt of the pecuniary costs in cases of professional misconduct.125
Such concerns can be translated into the wrongful life context where it
is accepted that it will be the insurers of the negligent
doctor who will be
asked to absorb the costs of the physician’s negligence.126
The assertion that prudent behaviour of physicians will be promoted by
pecuniary penalty127 must therefore be considerably
121 See, for example, Belsky, above n 18, at 188; Capron, above n 1, at 649, 657; Grainger, above n 6, at 174; Shapira, above n 56, at 370; Gleitman, n 30, at 703 per Jacobs J in dissent; Harbeson, above n 49, at 496.
122 Harriton, above n 4, at .
123 Todd above n17 at 156-157.
124 For a helpful summary of these criticisms see Gary T. Swhartz, “Reality in the
Economic Analysis of Tort Law: Does Tort Law Generally Deter?” (1994) 42 UCLA L. Rev. 377 at 380-390. The deterrence theory has been widely criticised, see generally, Richard L. Abel, “A Critique of Torts” (1990) 37 UCLA L. Rev.785; John G. Fleming, “Is There a Future for Torts? (1984) 44 La. L. Rev 1193; Stephen D. Sugarman “Doing Away with Tort Law” (1985) 73 Cal. L. Rev. 555.
125 Swhartz, ibid, 380-390.
126 Morgan and White, above n 37, at 247; see also Kapterian, above n 24, at 350.
127 Belsky, above n 18, at 244.
weakened when it is considered that the financial repercussions of such a
penalty will be transferred to an insurance company.
Hayne J also
persuasively argues that as the doctor’s liability for a wrongful life
claim is dependent upon the mother’s
confirmation that she would
have elected an abortion, the claim would only have indirect effects on the
promotion of careful
medical practice.128 Finally, if history
were to repeat itself, it could be argued that the widespread
strike of gynaecologists
and obstetricians that occurred following the
Perruche judgment129 is indicative of the fact that
recognition of the claim may not invariably result in an amelioration of the
quality of medical care.
In light of the debate surrounding the effectiveness of the deterrent
policy of the law of tort, heavy reliance cannot be placed
on the proposition
that recognition of the claim will promote increased standards of
medical care. It is however also
apparent that the desire to compensate the
child may arise from a “pre-reflective wish” to penalise the
practitioner.130 This sentiment was captured
in Kirby J’s assertion that denial of the claim would erect an
immunity around health care
providers who provide negligent care and
enable them to escape scot-free and without penalty.131 The question
therefore arises as to whether an action in tort would provide the
most appropriate mechanism to sanction
professional misconduct. Callinan J
proposes that it is to be expected that a negligent medical practitioner would
be severely disciplined
by a relevant disciplinary body,132 and this
argument is sound. Though the basic precepts of justice and fairness do indeed
require that negligent medical practitioners
are held accountable for their
misconduct,133 a tortious action is not the only means by
which this objective can be accomplished. Arguably, the sanctions
by a disciplinary body would be a more effective penalty than the
pecuniary penalty provided by an award of damages given that, as
discussed, the award would be absorbed by the physician’s
Undoubtedly, the strongest policy argument in favour of
128 Harriton, above n 4, at .
129 See Lysaught, above n 7, at 166-167; Ewing, above n 84, at 318.
130 Dimopoulos and Bagaric, above n 70, at 44.
131 Above n 4 at , .
132 Ibid, at .
133 Jackson, above n 9, at 575.
recognition of the wrongful life is the perceived injustice of leaving a
child whose life with disabilities is attributable
to the negligence
of another without a financial remedy. It is apparent that the normative
underpinnings which have compelled
judicial and academic support of the claim
have been largely premised on the need to alleviate the exorbitant
from the plaintiff’s life with disabilities.134
It is therefore widely claimed that the recognition of the action amounts
to a direct application of the policy of tort law
corrective justice.135 Here it must first be emphasised that
these claims are weakened by the fact that while there lies deep academic
as to the normative foundations of the concept of corrective
justice,136 the writers who make such claims conveniently avoid
deeper discussion as to what this elusive concept entails. It appears that such
pronouncements are simply based on the general conception that corrective
justice is “centrally concerned with the payment
of compensation for
certain losses.”137 If this is the general conception of
corrective justice upon which the assertions are based, it is initially
necessary to explore
whether a valid need for compensation even exists for the
wrongful life claimant. Crennan J in Harriton implied that this apparent
need was overstated as the appellant was “entitled to look to the State
and her devoted parents”
for the financial support that she
required.138 Such an argument has obvious shortcomings. It is
apparent that State provision of financial aid often falls short of
the financial needs of those with severe disabilities.139
Moreover, parental devotion does not necessarily equate to parental
ability to alleviate these
134 See, for example, Kapterian, above n 24, at 349-350; Hersch, above n 22, at 148; Stretton, above n 2, at 559; Shapira, above n 56, at 374; Hanson, above n 2, at 4; Morgan and White, above n 37, at 247; Morris and Santier, above n 68, at 193; Booth and Ballatyne, above n 82, at 42; Hirsch, above n 2, at 288.
135 See, for example, Kapterian ibid, at 349-350; Fordham, above n 20, at 148; Grey,
above n 11, at 559; Teff, above n 24, at 440; Philip G. Peters Jr “Rethinking Wrongful Life, Bridging the Gap between Tort and Family Law” (1992) 67 Tul. L. Rev. 397 at 298; Gleitman above n30 at 695 (dissenting opinion).
136 Jules Coleman and Arthur Ripstein “Loss, Agency, and Responsibility for Outcomes:
Three Conceptions of Corrective Justice” in Jules Coleman and Joel Feinberg (eds)
Philosophy of Law (7th ed, Thomson/Wadsworth, Belmont CA, 2004) at 546.
137 Ibid, at 546. See also Tony Honore The Morality of Tort Law in David G Owen (ed) Philosophical Foundations of Tort Law (1995) at 79; Richard A. Posner “The Concept of Corrective Justice; Recent Theories of Tort Law” in Saul Levmore (ed) Foundations of Tort Law (Oxford University Press, New York, 1994) at 59.
138 Harriton, above n 4, at .
139 Stretton, above n 16, at 997; Morris and Santier, above n 68, at
Opponents of the action argue that the financial needs of the child can be satisfactorily accommodated through recognition of the parental action for wrongful birth.140 Such an argument is problematic. First, as noted by Kirby J, it is clear that the parents who reap the financial benefits of a wrongful birth award are under no compulsion to apply the money to ameliorate their disabled child’s standard of living.141
Second, there are practical difficulties surrounding the proposition that
the wrongful birth action can act as a substitute for the wrongful life
claim. Owing to statutory bars in some jurisdictions, the
parents of the child
may often be legally precluded from bringing a wrongful birth claim
against the negligent physician.142 Third, it is uncertain whether
the judiciary will be willing to award damages for wrongful birth past the
child’s age of majority.143 In contrast, it is clear, as
demonstrated by the Perruche judgment, that damages for wrongful
life action are likely to be awarded past the plaintiff’s age of
majority.144 Accordingly, the proposition that a wrongful birth
action can abate the financial needs of the wrongful life plaintiff should not
carry great force in the denial of the claim. It is beyond contention that the
accumulated expenses of a disabled life cannot
be guaranteed to be met
by either the State, parental provision, or the related tortious action of
The financial strain caused by a wrongful life plaintiff’s “life
with disabilities” has led many to assert that
the tenets of fairness and
justice compel recognition of the claim.145 Such an argument does
have some immediate attraction. It is of course desirable for those who are
placed under financial strain,
because of the negligent conduct of others, to
140 Todd, above n 5, at 541, Mason, McCall Smith, Laurie, Law and Medical Ethics (6th ed,
2002) at 202.
141 Harriton, above n 4, at -.
142 For example, due to the expiry of the relevant statutory limitation period in New
South Wales the appellant’s parents in Harriton were precluded from bringing a wrongful birth claim, see Grey, above n 11, at 547. For discussion of such an occurrence in the US, see Pace ,above n 48 at 164.
143 In Cattanach the claim was limited to the age of majority. However, the issue is
currently unresolved as the judgement does leaves open the possibility for the claim to be extended to costs after the child’s age of majority. See generally, Todd, n5 at 533, Rachel Young, “Cattanach v Melchior” (2003) 11 JLM 153 at 156.
144 In Procanik v Cillo, above n 49, damages were also awarded past the age of majority, see
generally, Pace, above n 48, at 164.
145 See above n 134.
granted financial recompense. The promotion of corrective justice(as it is
commonly understood) is certainly a worthy ideal, yet
we are once again
faced with difficulties when relying on this argument. As the purpose
of corrective justice is to compensate
a loss,146 it would first
need to be accepted that loss has been occasioned for the wrongful life
plaintiff. As already examined, such a recognition
of loss is not possible
within the present boundaries of the negligence framework. We are therefore led
to question whether a
need for corrective justice is, in itself, enough to
warrant an extension of the traditional limits of liability law. For Crennan
the answer was firmly in the negative. Arguing that a need for corrective
justice could never be determinative of a novel claim
in negligence, the
appellant’s appeal to this normative function of the law of tort was
rejected.147 In contrast, it seems clear that Kirby J was impelled
by the thinking underlying the principles of corrective justice to
minimise the intractable difficulties presented by the ambiguities
surrounding non-existence.148 Unquestionably, Crennan J’s
reasoning must prevail. An underlying desire to supplement State
welfare provisions is
not sufficient to justify a radical reformulation of the
judicial concept of damage. To erode the foundations of established legal
principle in order to promote the inherently vague concept of corrective justice
is an approach that is quite simply untenable.
It is clear that the negligence framework should not be extended so as to
include the wrongful life action within its ambit. Although
some of the policy
objections to the action have been overstated this concession does not entail
that the claim should be recognised.
The fact that a life with disabilities is
unable to be recognised as a loss under the present boundaries of negligence
heavily in favour of the action’s rejection. Moreover, the
troubling policy concerns which surround recognition of the claim
support to such a conclusion. Not only would a judicial recognition of the
action result in an undesirable conflict
of duties, it would also require
the judiciary to take on the unenviable task of determining when a life with
is not worth
146 See, Honore, above n 134, at 79; Perry, above n 133, at 546; Jules L. Coleman “The Practice of Corrective Justice” in David G. Owen (ed) Philosophical Foundations of Tort Law (1995) at 57.
147 Harriton, above n 4, at .
148 Ibid, at .
living. Unsurprisingly such a judicial determination is considered to be deeply offensive by many disabled members of the community. While the proposition that the underlying policies of tort law demand recognition of the action does have some emotive appeal, it ultimately lacks persuasive force. To found a duty upon the perceived need to promote policies that have been subjected to considerable criticism is an approach that is clearly unsound. Therefore, we are drawn to the conclusion that, in the words of Crennan J, “life with disabilities, like life, is simply not actionable.