DENIAL OF “wrongful life/ suffering” CLAIM – LEGAL or MORAL?
Lam Wing Hei (a minor suing by her mother and next friend Lam Tsz Kiu) and Lam Tsz Kiu. v. Hospital Authority, HCPI No. 1129 of 2015, The Hon. Mr. Justice Bharwaney, 28th May 2018.
This is a striking out application made by the Defendant against the 1st Plaintiff (“the Baby”) on the ground that it discloses no reasonable cause of action. The Defendant denied that it owed any duty of care to the 1st Plaintiff, who was a foetus, to terminate its existence and life.
This is a medical negligence claim made by the Baby and the 2nd Plaintiff who is the mother of the Baby (“the Mother”) against the Hospital Authority arising out of the circumstances leading to and the birth of the Baby in Kwong Wah Hospital (“KWH”) on 15th April 2012.
Prior to the birth of the Baby, Dr. Richard Choy of CUHK informed Dr. Leung of KWH that certain defects were found in chromosome no. 17 of the foetus. This information was not relayed to the Mother and the Baby was born with severe deformities, disabilities and impairment of a genetic origin.
It is undisputed that (a) the Mother is entitled to bring her claim, (b) the disabilities suffered by the Baby are congenital in nature, (c) the disabilities were not caused by any negligence on the part of the Defendant and (d) there was no assertion of any negligence in the treatment of the Baby after she was born.
The main issue in dispute is whether the claims for “wrongful life” and “wrongful suffering” are barred by the provisions of Part IVA of the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23 (“LARCO”), in particular Section 22A(1) thereof.
His Lordship found the provisions bar all claims for wrongful life, including all claims for wrongful suffering, caused by a defendant’s negligence in failing to advise a mother of the material risk of a foetus being born seriously deformed so that she may consider having an abortion. Accordingly, His Lordship struck out the Baby’s claim against the Defendant on the ground that it disclosed no reasonable cause of action.
His Lordship gave the reason that a right of a foetus to be aborted or an interest of a foetus in its own termination, does not reflect current values generally, or even widely, held by the community in Hong Kong.
His Lordship said the most compelling reason for him to reject the cause of action is, in order to constitute damage, which is an essential ingredient of the tort of negligence giving rise to a right to compensation, it must be established that non-existence is preferable to life with disabilities to the child. Unless that is so, there is no damage, of the character which constitutes the gist of an action in negligence, for the purposes of an action by the child.
His Lordship concluded that the common law of Hong Kong, as it has developed up to today, does not recognise a cause of action for wrongful life or wrongful suffering.
This decision is the first in Hong Kong dealing with this issue. Hence, a baby who was born with congenital disabilities cannot claim against the doctor for “wrongful life” or “wrongful suffering” based on the ground that had the doctor informed the mother of the disabilities in the foetus, the mother could have chosen to terminate the pregnancy.
From the legal point of view, this decision seems right as the cause of action per se is denied under LARCO. How about moral?