Law Suit of the Week

It's come to this:

An Australian woman who is deaf, blind and physically and mentally disabled wants to sue the doctor who allowed her to be born.

Lawyers for Alexia Harriton, 24, who needs round-the-clock care, made the application yesterday to the Australian High Court, arguing that her mother's doctor was negligent in failing to diagnose rubella infection early in the pregnancy.

According to Court TV:

Harriton, 24, is seeking compensation from the doctor who misdiagnosed rubella in the first trimester of her mother's pregnancy, claiming Olga Harriton would have aborted her had she been aware of the potential birth defects arising from the illness.

Causation? Harriton insists 'I don't have to show you any stinking' causation, says Perry DeHavilland at Samizdata: "Never mind that rubella during pregnancy does not guarantee what happened to Ms. Harriton."

But because abortion is lawful, under at least some circumstances, in all eight Australian states/territories, are doctors liable to the unborn? Harriton's lawyer, B.W. Walker, addressed that question in last Thursday's argument before the High Court of Australia:

How can one have before a person exists a duty owed to the person, let alone a breach of that duty? How can one have before a person exists damage suffered by that person following, that is as a result of, that pre-existing duty, that pre-existing breach. The law, for obvious reasons to do with ultimately our biology and appropriate social standards, would not have a bar of such logic standing in the way of the claim. How, after all, could it be truly said that the law saying you cannot be a person, thus you cannot have a cause of action until you are born, how could the law tolerate doctors who make their living by looking after pregnant women and their embryos saying, “I have no duty to take into account that I may by my negligence damage the embryo” and not only people who know of or have been engaged in the interest of the embryo, but also doctors who are dealing with women who may or may not be pregnant.

What about "standing?" I hear you say. Justice Kirby asked the same question:

KIRBY J: At least one theoretical argument for not [allowing such lawsuits] is then do we have actions on behalf of embryos which were not permitted to come to full term or which were aborted for the loss of the chance of life?

MR WALKER: No. There would be no person to sue.

KIRBY J: Well, there might be somebody who wished to sue on their behalf – a parent who did not agree with the termination.

MR WALKER: Your Honour, that is another case. It is not - - -

KIRBY J: I am just testing the logic of it.

MR WALKER: Your Honour, I must not resist the consequentialist testing, and I do not resist that as a notion. I simply say that particular consequence, that there are several steps to be gone through before one would ever get to a suit in the name of, or . . . on account of a person who was never born.

And damages? What are the damages from "wrongful birth?" Two answers. First:

Lawyers for the Sydney woman argued in Australia's highest court Thursday that Dr. Paul Stephens is liable for the costs arising from a lifetime of medical treatment that Harriton needs to survive.

But Mr. Walker wants more:

HEYDON J: Do you claim lost earnings?

MR WALKER: Your Honour, yes. . . It is the particular physical condition not of being alive but what I have summed-up in the word “disability” as a - - -

GLEESON CJ: As compared with what?

MR WALKER: As compared with not having been born.

Apparently the United States isn't the only country in desperate need of tort reform--Steven Den Beste notes "'Wrongful Life' lawsuits have become far more common than you may realize."

Whatever one's view on abortion, the notion of "wrongful life" is depressing. As Right Wing News' John Hawkins says:

[L]ife is always better than death in a case like this and once you decide that it isn't, you've taken the first step down the road towards eugenics. If Alexa is better off dead than alive because of her disabilities, then the next logical question is in what other cases is the child better off being murdered in the womb? What if the child is just retarded? What about crippled? Heck, what about a child with a harelip or a clubfoot? Are they such abominations that they deserve to be ripped to pieces by an abortionist rather than allowed to live?