NSW — AMID all
the worries about the constitutionality of the
corporations power's latest little love child,
WorkChoices, it is amazing that the High Court managed
this week to deliver its decision in the anxiously
awaited "wrongful life" cases.
The corporations power is a snack
compared to the importation of religion, morality,
metaphysics and logic into the legal principles involved
in determining whether someone who might not have been
born at all, had their mother's doctor not been
negligent, can be compensated for severe disabilities
because they had in fact been born. What a field
day.
Alexia Harriton, 25, and Keeden
Waller, 5, were born terribly disabled. Alexia's mother
had German measles while pregnant. Her doctor did not
diagnose rubella and did not prescribe a follow-up blood
test. Importantly, he did not advise her there would be a
very high risk her child would be born with
abnormalities. Alexia is blind, deaf, mentally retarded,
suffers from spasticity and requires constant
care.
Keeden was born after his parents
underwent IVF. However, his father had a genetic
condition that was not investigated by the IVF doctors
and was passed on to the child, resulting in permanent
brain damage, cerebral palsy and uncontrolled
seizures.
Suing in their own right, the two
children sought damages against the doctors. With only
two of the 11 judges who grappled with these claims in
three courts being on the side of the angels, the forces
arrayed on the side of darkness must have been pretty
formidable.
The problem was that in a claim for
compensation the law seeks to quantify the damage against
an identifiable benchmark, which would normally be the
condition of the claimant before an injury. However, a
"wrongful life" case involves comparing the value of a
disabled life with no life at all, because had the
doctors not been negligent the probability is that these
two foetuses would have been legally aborted.
The law would require proof that in
these circumstances you would be better off not being
born. And not too many judges want to go
there.
The majority throughout thought it
is not possible to compare existence with non-existence,
and so it is therefore impossible to quantify any loss.
That is why Alexia and Keeden failed.
In examining this argument Justice
Michael Kirby cited Ludwig Wittgenstein's view of
existence: "Death is not an event of life. Death is not
lived through."
What the majority position fails to
accommodate is that there is a new modern order. Medical
technology can detect abnormalities at very early stages
of the development of a foetus. Good medical practice
regularly results in the non-existence of human beings.
What has been created by way of Alexia and Keeden is
precisely what the doctors were engaged to prevent being
created.
The High Court majority was not
prepared to push the set-and-dried principles further.
The black-letter brigade screamed at the court in 2003
for allegedly taking the law into new territory in the
"wrongful birth" case of Cattanach v Melchior, where it
was found that a wife and mother whose sterilisation
operation was unsuccessful could recover damages for the
financial requirements that flowed from the birth of a
healthy child.
The new judge on the block, Justice
Susan Crennan, wrote the lead reasons in these two
"wrongful life" cases, getting into some contentious
water in the process. She said these disabilities are
only one dimension of humanity: "… every human life,
within its circumstances and limitations, is
characterised by an enigmatic and ever-changing mixture
of pain and pleasure related to [biological]
needs."
Justice Kirby, in the minority of
one, cut through the artifice - the comparison with
non-existence is a fiction, a creature of legal
reasoning. The upshot is that the medical practitioners
who were neglectful and caused damage have escaped
"scot-free" and the law countenances this
outcome.
A final wrinkle. If Alexia's and
Keeden's parents had sued for damages in their own names
there was every prospect of success. Yet it was too late
for them to do that because the limitation period had
gone.
And some people think that the Work
Choices case is depressing.
