Of Wrongful Birth, Wrongful Life, Comparative Law and the Politics of Tort Law Systems

Abstract

In analysing ‘wrongful birth’ and ‘wrongful life’ cases, comparative law is used extensively. This article examines those claims in light of the Dutch Kelly case and the recent South African decision in Stewart v Botha. I argue first that the right to self-determination and the sanctioning of a breach of that fundamental right are at stake here and that those considerations point towards allowing these claims. However, it is also argued that it is not so much the outcomes and arguments found elsewhere through comparative law that are decisive in highly debated cases like those concerning wrongful birth and wrongful life, but that instead it is the cultural background, the policies within a tort law system that decides the issue, irrespective of how the legal comparative arguments are being weighed.

Keywords: wrongful life, wrongful birth, comparative law, legal policy, tort law, self-determination

JEL Classification: K13, K32, I18