Mom sues for 'wrongful suffering'
JOHANNESBURG – A claim for damages of at least R6-million for the “wrongful suffering” of a child born with Down’s syndrome was heard in the Constitutional Court, The Times reported on Friday.
The mother, who cannot be named to protect the child’s identity, wanted the Foetal Assessment Centre in Claremont to pay damages for failing to recognise that her unborn son was at “very high risk” of Down’s syndrome, according to the report.
Had she known the severity of the risk, she would have aborted the foetus, according to the report.
Instead of the parents having to bear the costs of caring for the child the Foetal Assessment Centre should be responsible, she argued.
The High Court in Cape Town dismissed the mother’s application earlier this year.
The Claremont centre opposed the application.
Citing case law, the high court noted that such a claim — which would require a court to determine whether a child should have been born –”goes to the heart of what it is to be human, [something that] should not be asked of the law”.
But in the Constitutional Court, the mother denied basing her damages claim on “wrongful life”, instead making the novel claim of “wrongful suffering”.
She said that instead of considering whether her son should have been born the court should determine whether the centre’s alleged negligence should result in it paying damages, according to the report.
Judgement was reserved.