Congenital disability, medical negligence and wrongful life actions, the limits of liability in Anglo-American tort law

grantor: University of TorontoThis Thesis addresses the difficult legal and conceptual issues raised by the 'wrongful life' cause of action in Anglo-American tort law. 'Wrongful life' actions are brought on behalf of congenitally disabled children alleging medical negligence by a defendant physician for failing to avail the child's parents of the opportunity to avoid the child's conception and/or birth. Because the child in such a case never had the chance to be born 'healthy' or 'whole', her complaint tends to be characterised by the Courts as a claim for negligently allowing her to be 'born', a claim for 'wrongful entry into life' or 'wrongful life'. This Thesis argues that the 'wrongful life' label is emotive and distorts the true nature of the underlying claim, which is arguably akin to a regular medical malpractice action for prenatal injury. A 'person affecting' conception of harm, which partly underlies and explains the judicial reluctance to allow 'wrongful life' actions, is considered in an effort to better understand the true limits of liability in Anglo-American tort law.L.L.M