WRONGFUL LIFE − THE SCA RULES IN Stewart v Botha (340/2007) [2008] ZASCA 84 (3 June 2008)

Abstract

For many decades now abortion legislation has (even before the era of abortion on demand) allowed a mother the right to have a foetus aborted which could be born with a physical mental defect resulting in the child being seriously handicapped. In the future it will be possible, not only to have defective foetuses aborted, but also to order our babies according to our own specifications. In the present case the plaintiffs' child was born severely handicapped because the parents were not informed of the fact that the foetus was suffering from congenital defects. The mother would, had she known about the defects, have had the foetus aborted. The mother was, however, ignorant of any defects and the child was born with severe disabilities. Apart from the claim instituted by the mother in her own name, the father instituted a claim on behalf of the son. The Supreme Court of Appeal rejected this second claim as being against public policy. It is this second claim that forms the basis of this note.