The door is no longer firmly shut on lawsuits brought by, or on behalf of, children born with medical conditions or disabilities that, through negligence, were not detected before birth, reports The Times.
South Africa's Constitutional Court has ruled in a case – the first of its kind – that could lead to the law being developed to allow such claims. It granted leave to appeal a High Court dismissal on the grounds that there was no provision for such claims in South African law of one such application. The Constitutional Court overturned the dismissal and referred the matter back to the Cape Town High Court for a final decision.
A six-year-old Cape Town boy, with the help of his mother, claimed R6m for "special damages for past and future medical expenses" and general damages for "disability and loss of the amenities of life". He was born with Down's syndrome.
He brought the lawsuit against the Foetal Assessment Centre, in Cape Town, which he accused of "wrongfully" and "negligently" failing to pick up his very high risk" of having Down's syndrome during testing for congenital defects.
The centre argued that South African law did not recognise such claims. It relied on an earlier Supreme Court of Appeal decision that found such claims by children would ask "a court to evaluate the existence of the child against his or her non-existence and find that the latter was preferable", which went "so deeply to the heart of what it is to be human that it should not even be asked of the law".
The Constitutional Court, however, found that, though the law does not currently allow for such claims, it might need to be developed to include them.
[link url="http://www.timeslive.co.za/thetimes/2014/12/12/suing-from-the-womb"]Full report in The Times[/link]