NSW — THE High
Court has closed the door on children suing for
deformities that could have been detected in the womb,
saying to compensate them would devalue the life of a
disabled person.
By a 6-1 majority, the court
yesterday said the parents of Alexia Harriton and Keeden
Waller - and not their doctors during pregnancy - were
responsible for their condition.
Alexia, now 25, is blind, deaf,
spastic and mentally retarded. Her mother, Olga,
contracted rubella during her pregnancy and says she
would have had an abortion if properly
advised.
Keeden, five, suffers permanent
brain damage, cerebral palsy and uncontrolled
seizures.
His father, Lawrence, had the blood
disorder AT3 but doctors failed to screen for it. He and
his wife, Debbie, say they would have conceived with
donor sperm or terminated the pregnancy had they
known.
The High Court has already held
doctors liable for a mother becoming pregnant against her
wishes and for negligence during the delivery of a
child.
But the "wrongful life" claims
involved comparing a life with no life and asking whether
someone born with a disability would be better off not
being born. In the age of genetic testing, it was a step
the court refused to take.
Justice Susan Crennan, who wrote
the lead judgement, said comparing a life with
non-existence to prove damage was impossible. She said it
would be "odious and repugnant to devalue the life of a
disabled person by suggesting that such a person would
have been better off not to have been born into a life
with disabilities".
Alexia's disabilities were only
"only one aspect" of her humanity. "A seriously disabled
person can find life rewarding," she said. The action
raised the question of whether to recognise "a right of
foetus to be aborted" when doctors already had a duty of
care to the mother. "Life with disabilities, like life,
is not actionable," she said.
The Australian Medical Association
said a long-term care scheme was needed.
