Australia's High Court yesterday rejected a landmark lawsuit by two severely disabled people seeking compensation on the grounds that they should not have been born.
The judges found the two, Alexia Harriton, 25, and Keeden Waller, 5, did not have a right to mount the case against their mothers' doctors.
Harriton is blind, deaf, mentally retarded and needs 24-hour care because her mother contracted rubella during pregnancy, while Waller has permanent brain damage from a genetic disorder not picked up during prenatal screenings.
In the case termed a "wrongful life" suit, Harriton claimed her mother's doctor negligently failed to diagnose the rubella which occurred early in pregnancy or to advise there was a high risk the baby would suffer abnormalities.
Her mother, Olga Harriton, said she would have terminated the pregnancy had she received proper advice.
Keeden, a baby conceived through in-vitro fertilization, also claimed through his parents that his was a case of wrongful life after he inherited the clotting disorder AT3 from his father.
The boy was born with brain damage, suffers from cerebral palsy, has uncontrolled seizures and requires constant care.
His parents claimed that if they had been informed of the risk Keeden would be disabled, they would have deferred his conception until methods were available to counter the AT3 disorder.
The two families' cases were already dismissed by the New South Wales state Supreme Court and an appeals court.
By a six to one majority, the High Court judges upheld the earlier rulings that the doctors had not breached their duty of care. They found that comparing a life with "non-existence" for the purposes of proving actual damage was impossible.
Justice Susan Crennan said that while physical damage like a broken bone was something judges had experience in dealing with in terms of assessing a claimed loss, it was impossible to make an assessment between a disability and non-existence.
"There is no present field of human learning or discourse, including philosophy and theology, which would allow a person experiential access to non-existence, whether it is called pre-existence or afterlife," she said.
The one dissenting judge, Michael Kirby, said denying the existence of wrongful life actions created an immunity for health care providers whose negligence results in a person being born into a life of suffering.
"The law should not approve a course which would afford such an immunity and which would offer no legal deterrent to professional carelessness or even professional irresponsibility," he said.