The immeasurable wrongfulness of being : the denial of the claim for wrongful life
CITATION: Human, S. & Mills, L. 2010. The immeasurable wrongfulness of being : the denial of the claim for wrongful life. Stellenbosch Law Review = Stellenbosch Regstydskrif 21(1):67-89.
The original publication is available at https://journals.co.za/content/journal/ju_slr
In Friedman v Glicksman 1996 1 SA 1134 (W) the claim for wrongful life was denied. Eleven years later the Cape High Court again denied the existence of the claim in Stewart v Botha 2007 6 SA 247 (C); 2007 9 BCLR 1012; 2007 3 All SA 440 albeit for different reasons than those used by the Court in Friedman. The Supreme Court of Appeal had the opportunity to provide well-reasoned answers to the many questions resulting from the two conflicting decisions and to finally put to rest the matter of whether the action should be recognised in South African law or not. Unfortunately it failed to do so. This article discusses the recent South African and international case law which considered the action, placing emphasis on the policy issues underlying the claim. In light of the constitutional dispensation and the promulgation of the Children's Act 38 of 2005, it is argued that the opportunity now exists to reconcile the principles of delict with the constitutionally enshrined rights of the child to ensure that the best interests of the child are served.