Aq34-2 prelims

REVISITING WRONGFUL LIFE CLAIMS IN CANADA —CAN THERE BE A CAUSE OF ACTION?BOVINGDON V. HERGOTT Yola S. Hamzo Ventresca* and Peter W. Kryworuk** As recent Ontario decisions demonstrate, Canadian courts, together with much of the common law world, continue to grapplewith “wrongful life” claims in an incomplete and even confusedmanner. While the courts continue to reject claims for wrongful life,judicial reasoning in recent decisions such as that of the OntarioCourt of Appeal in Bovingdon v. Hergott1 reveals the absence of aclear and consistent rationale to justify the continued rejection ofwrongful life claims. The Bovingdon decision is of particular interestand concern since it leaves the door open to the possibility of asustainable wrongful life claim without setting out any clear set ofprinciples to determine whether such claims would, or ought to be,recognized. In the end, we are left with a superficial and thuspotentially vulnerable line of judicial reasoning. While affirming thatthe physician owes a duty of care to the mother that is not co-extensiveto the children, the court in Bovingdon nevertheless strained to leavethe door open for courts in the future to recognize wrongful lifeclaims.
The decision in Bovingdon suggests an urgent need to revisit the juridical status of wrongful life claims in Canada. Our analysis willfollow three lines of inquiry. First, we will review the constituentelements of the so-called “birth torts”2 in order to define clearly whatconstitutes “wrongful life”, and, more specifically, why it has notbeen recognized in law. Second, we will review recent international LL.B., LL.M. Associate, Health Law Practice Group, Lerners LLP. Forquestions, please contact yventresca@lerners.ca.
LL.B., Partner and Health Law Practice Group Leader, Lerners LLP. Theauthors would like to acknowledge Jennifer A. Barlow, student-at-lawLerners LLP (2007-2008) for her assistance with this article.
[2008] ONCA 2 (C.A.), affg in part [2006] O.J. No. 4672 (QL), 275 D.L.R.
(4th) 168, 83 O.R. (3d) 465 (S.C.J.).
For an extensive discussion of this subject, see Dean Stretton, “The BirthTorts: Damages for Wrongful Birth and Wrongful Life” (2005), 10 DeaconL. Rev. 319.
jurisprudence from the common law world to establish the extent towhich courts continue to reject wrongful life claims. Finally, we willconsider recent Canadian jurisprudence, in particular, the decision ofthe Ontario Court of Appeal in Bovingdon. We submit that cases suchas Bovingdon suggest that the reasoning underlying the rejection ofwrongful life claims is vulnerable and still open to attack.
As we shall see, the court in Bovingdon gave short shrift to the policy concerns that historically have informed judicial rejection ofwrongful life claims. And, so, rather than interrogate in substantiveways the problems that inhere when judges are asked to compareexistence with non-existence in assessing a plaintiff’s damages, thedecision of the court limited itself to an analysis of tort law principlesand the autonomy of women in medical decision-making. In ourreading of Bovingdon, we want to underscore the need for Canadiancourts to re-assert the principled framework laid out authoritativelyin McKay v. Essex Area Health Authority.3 More to the point, what isneeded is a clear and consistent line of judicial reasoning groundedfirmly on the two fundamental propositions underlying thewidespread rejection of wrongful life claims in the common lawworld, namely: There is no public policy interest in making a physician owe aduty of care to an unborn child to see that the child is not born.
It is impossible in concrete terms for judges to assess damagesin wrongful life claims since this entails comparing the value ofa disabled life to the value of having no life at all.
2. Wrongful Life Claims in Canada — The Historic Position In a recent issue of the Torts Law Journal,4 Professor Margaret Fordham observed that the term “wrongful life” historically has been“used to describe an action brought by a disabled child against thedoctor or other medical professional who failed to diagnose that [thechild] was likely — or even certain — to be born with disabilities,either because of a congenital (normally chromosomal) defect, or as aresult of a disease contracted in utero”.5 Put simply, in a wrongful lifeclaim, “the child argues that, had the risk of certainty of disabilitybeen known, its parents would either have avoided its conception orwould have had it aborted”.6 Margaret Fordham, “A life less ordinary — The rejection of actions forwrongful life” (2007), 15 T.L.J. 123 at pp. 123-52.
It is important to maintain the distinction between claims for wrongful life and claims for wrongful birth. The latter category refersto instances where “the parents of a child who would not have beenconceived or born but for a doctor’s negligence claim damages for thecost of raising the child”.7 Damages for wrongful birth may include“the pain suffering and economic loss associated with pregnancy,including labour pains, medical bills, maternity clothes, loss ofincome during pregnancy and (less commonly) the cost of moving orextending the house in anticipation of accommodating an extramember”.8 Historically, Canadian courts have allowed recovery for wrongful birth, but not for wrongful life. Rejection of wrongful life claims restson the principles set out in the leading common law decision of theEnglish Court of Appeal in McKay.9 In McKay, a child whocontracted rubella in utero brought a claim against the defendantphysician for his alleged failure to diagnose the illness. The motheralleged that had she been alerted to the illness and its consequences forher pregnancy, she would have procured an abortion.10 In McKay, the Court of Appeal held that the claim should be struck on two grounds: first, because it was contrary to public policy, andsecond, because it put the court in the impossible position of having todetermine how to measure compensating a plaintiff for the harm ofbeing born. Significantly, Stephenson L.J. reasoned that to allow thechild’s cause of action would be to devalue the life of the disabledplaintiff, as he noted:11 To impose such a duty towards the child would, in my opinion, make afurther inroad on the sanctity of human life . . . It would mean regardingthe life of a handicapped child as not only less valuable than the life of anormal child, but so much less valuable that it was not worth preserving,and it would even mean that a doctor would be obliged to pay damagesto a child infected with rubella before birth who was in fact born withsome mercifully trivial abnormality. These are the consequences of thenecessary basic assumption that a child has a right to be born whole ornot at all, not to be born unless it can be born perfect or “normal”,whatever that may mean.
Stephenson L.J. noted that in circumstances such as these, the onlyduty owed to the fetus by the defendant physician was a duty not to Stretton, “The Birth Torts”, supra, footnote 2, at p. 321.
McKay, supra, footnote 3, at pp. 1180-181.
10. Ibid., at p. 1172.
11. Ibid., at p. 1180-181.
injure it. As Professor Fordham observed, since the defendant hadnot failed in this duty, the only way the plaintiff could frame the casewas to assert that it had:12 a right not to be born deformed or disabled, which means, for a childdeformed or disabled before birth by nature or disease, a right to beaborted or killed; or, if that last plain word is thought dangerouslyemotive, deprived of the opportunity to live after being delivered fromthe body of her mother.
Accordingly, the court noted that while there was a duty on thedefendant to provide the mother with the information necessary todetermine whether she would choose to have an abortion, there wasno coextensive duty to the child to advise the mother of such. As notedabove, the court concluded that such a duty would be contrary topublic policy.
Moreover, Stephenson L.J. noted that the plaintiff’s claim could not succeed since the damages being alleged were not ascertainable:13 Judges have to pluck figures from the air in putting many imponderablesinto pounds and pence . . . But in measuring the loss caused by shortenedlife, courts are dealing with a thing, human life, of which they have someexperience; here, the court is being asked to deal with the consequencesof death for the dead, a thing of which it has none . . . If difficulty inassessing damages is a bad reason for refusing the task, impossibility ofassessing them is a good one . . . If there is no measure of damage whichis not unjustified and indeed unjust, courts of law cannot entertain claimsof a child affected with pre-natal damage against those who fail toprovide its mother with the opportunity to end its life, however carelessor unskilful they may have been and however liable they may be to themother for that negligent failure.
The reasoning in McKay was echoed by the Canadian courts in the2001 decision of the Manitoba Court of Appeal in Lacroix(Litigation Guardian of) v. Dominique.14 In that case, the Court ofAppeal confirmed that no legal action existed for wrongful life.15 12. Ibid., at p. 1178.
13. Ibid., at pp. 1181-182.
14. [1999] M.J. No. 397 (QL), [1999] 12 W.W.R. 38, 141 Man. R. (2d) 1 (Man.
Q.B.), affd 202 D.L.R. (4th) 121, [2001] 9 W.W.R. 261, 246 W.A.C. 262(Man. C.A.), leave to appeal to S.C.C. refused [2001] S.C.C.A. 477. Allcitations are to the decision of the Manitoba Court of Appeal.
15. But, see Bovingdon, supra, footnote 1, and Petkovic (Litigation Guardian of) v. Olupona (2002), 11 C.C.L.T. (3d) 91 (S.C.J.), motion by the defendantOlupona for leave to appeal the dismissal of his motion to strike out part ofPetkovic’s action for damages for wrongful life dismissed [2002] O.J. No.
3411 (QL), 30 C.C.L.T. (3d) 266 (Div. Ct.).
Lacroix involved a claim against the defendant physician for damages sustained as a result of the birth of the infant plaintiff withsevere mental and physical abnormalities. Prior to becomingpregnant with her first child, the mother, an epileptic, sought theadvice of her family physician. The concern of both she and herhusband was that it might be unsafe to start a family while the wifewas on medication to control her epilepsy. The family physicianreferred the couple to the defendant neurologist. The nature andquality of the advice received by the mother was contested at trial. Theparents argued that the physician failed to counsel them to avoidpregnancy and failed to inform them of possible risks to the fetusthrough the use of the drug. The defendant contested this version ofevents, arguing that he had alerted the parents to the risks involved.
The trial judge accepted the plaintiffs’ evidence. The mother becamepregnant within two years of the consultation and gave birth to ahealthy child. Six months later she became pregnant again. The infantplaintiff was subsequently born with severe physical abnormalitiesand was diagnosed as being developmentally delayed.16 At trial, the judge held that the defendant physician did not owe a duty to the child to facilitate her non-existence. In so doing, the trialjudge noted that the tort of wrongful life was not recognized inCanadian law. The decision was appealed to the Manitoba Court ofAppeal. Writing for the Court of Appeal, Twaddle J.A. affirmed thedecision of the trial judge. In so doing, he offered a framework — theso-called “two-category approach” as it was described in Bovingdon— to be applied in cases involving a claim by a child born withabnormalities. Specifically, Twaddle J.A. noted that these casesgenerally fall within one of two categories: cases in which the abnormalities have been caused by thewrongful act or omission of another, and cases in which, but for the wrongful act or omission, the childwould not have been born at all.17 Twaddle J.A. noted that cases falling within the first category arerecognized at law and cited the decision of Webster v. Chapman as anexample.18 In that case, the child’s abnormalities were caused by themother’s ingestion of a medication prescribed by the defendantphysician. Twaddle J.A. noted that in this instance, the “primaryfinding” of negligence was the doctor’s “failure to consult a specialist 16. Lacroix, supra, footnote 14.
17. Ibid., at para. 24.
18. (1997), 126 Man. R. (2d) 13, 155 D.L.R. (4th) 82, [1998] 4 W.W.R. 335 (C.A.), leave to appeal to S.C.C. refused 159 D.L.R. (4th) vii.
on a more timely basis to obtain advice concerning the advisability ofcontinuing his patient on the medication, advice, which, if given,would have been to discontinue the medication immediately”.19 Twaddle J.A. elaborated that cases within the second category typically involve “the failure of a doctor to warn the mother of the riskof giving birth to an abnormal child as a result of a factor over whichthe doctor has no control”.20 In such cases the “risk” is apparent beforeconception (for example, incompatible hereditary characteristics); inother cases, the risk should have been detected after conception butbefore birth (i.e. a failure to advise of the availability of anamniocentesis test).21 Twaddle J.A. noted that in all of these cases,the physician’s negligence had not caused injuries to the child; rather,the only “consequence of the doctor’s negligence is that the motherhas been deprived of the option of avoiding conception or of havingan abortion”.22 In these types of cases, Twaddle J.A. noted theparents’ claim is for “wrongful birth” while the child’s claim is for“wrongful life”.
Relying on McKay, Twaddle J.A. observed that cogent and compelling arguments exist to preclude wrongful life claims inCanada.23 Speaking to the consequences of allowing the child’s claimto proceed, Twaddle J.A. noted: The plaintiffs’ counsel is on firmer ground in making the submission thatthis case is closer to the first category of cases where the harm is causedby the doctor’s negligent action. The cause of the harm was establishedas the medication which the doctor prescribed for the mother’s use, not ahereditary characteristic or an infection. Can it be said that the doctorowed the future child a duty of care not to prescribe a medication for themother which he knew carried the risk of injuring a fetus? The imposition of such a duty would immediately create an irreconcil-able conflict between the duty owed by the doctor to the child and thatowed to the mother. The medication was properly prescribed to treat themother’s epilepsy. Without it, any fetus she might conceive would be ateven greater risk from a seizure than from the medication. Surely, thedoctor cannot withhold the medication from the mother, and put her atrisk, for the sake of avoiding risk to a yet unconceived fetus which mightbe at even greater risk if the mother’s epilepsy went uncontrolled.24 19. Lacroix, supra, footnote 14, at para. 27.
20. Ibid., at para. 27 (emphasis added).
21. Ibid.
22. Ibid.
23. Ibid., at para. 37.
24. Ibid., at paras. 38-39.
It is thus quite clear that, if the doctor had fulfilled his duty of care to themother, the child would not likely have been born. The fact that thechild’s injury was caused by the medication does not result in liabilityagainst the doctor as he was under no duty of care to the child. And thedamages, as in McKay v. Essex Area Health Authority, supra, areimpossible to assess.25 3. Wrongful Life Claims — Pre-Bovingdon Jurisprudence Along with Lacroix, a number of other Canadian cases have considered wrongful life claims. An early decision on this subject wasthe decision of the British Columbia court in Cherry (Guardian adlitem of) v. Borsman.26 In Cherry, the plaintiff infant brought anaction against the defendant physician on the basis of an injury thatwas caused by negligence during an attempted abortion. The trialjudge found the defendant physician negligent on the basis of theordinary “neighbour” principle established in Donoghue v.
Stevenson,27 and not on the basis of “wrongful life”.28 On appeal to the British Columbia Court of Appeal, the defendant physician argued that to impose a duty to the fetus would beinconsistent with the duty he owed to the mother to terminate thepregnancy. Specifically, the physician argued that because his dutywas to his patient (the mother), he could have no legal proximity tothe child. The British Columbia Court of Appeal disagreed. The courtheld that the defendant had a duty of care to the mother to perform histask properly, and also a duty of care to the fetus not to harm it if heshould fail in meeting the duty of care he owed to the mother.29 Thephysician asserted that this was a “wrongful life” case and,accordingly, should not be allowed to proceed. For their part, theplaintiffs alleged that the case was to be determined on ordinarynegligence principles. The Court of Appeal agreed with this positionon the basis that the plaintiffs were not asserting a legal obligation tothe fetus to terminate its life, as was the position in McKay.30 25. Lacroix, supra, footnote 14, at para. 41.
26. (1992), 94 D.L.R. (4th) 487, [1992] 6 W.W.R. 701, 28 W.A.C. 93 (B.C.C.A.), leave to appeal to S.C.C. refused 99 D.L.R. (4th) vii.
27. [1932] A.C. 562 (H.L.).
28. Cherry, supra, footnote 26, at p. 503.
29. Ibid., at p. 504. “We think a surgeon on performing an abortion in a case such as this owes a duty of care to the mother to perform his task properlybut at the same time owes a duty of care to the fetus not to harm it if heshould fail in meeting the duty of care he owes to the mother.” 30. Cherry, ibid., at p. 503. However, see the decision of the Ontario Superior Court of Justice in Paxton v. Ramji, [2006] O.J. No. 1179 (QL) at para. 164,146 A.C.W.S. (3d) 913 (S.C.J.). In Paxton, the court noted that it is Another early case involving a wrongful life claim was the decision of the British Columbia Supreme Court in Arndt v. Smith.31 In Arndt,a mother contracted chicken pox while pregnant and, as a result, herchild was born with disabilities. The plaintiff mother alleged that ifthe doctor had properly advised her of the risk of injury to the fetus,she would have terminated the pregnancy. Notwithstanding the factthat the infant’s claim was abandoned before trial, the trial judgenoted in his decision that: “There is no viable suit in this province for‘wrongful life’, i.e., a claim by a person born with disabilities assertinghe or she should not have been born at all.”32 Accordingly,Hutchinson J. found that the abandonment at trial of the plaintiffinfant’s claim was “well founded”.33 Jones (Guardian ad litem of) v. Rostvig34 is another case that considered the viability of wrongful life claims. In Jones, a motherand a child brought an action in negligence against the defendantphysician. The mother was of advanced maternal age and alleged: a failure on the part of the defendant physician to prescribeamniocentesis and other prenatal tests that would have alertedher to the fact that the fetus had Down syndrome, and a failure to provide her and her husband with prenatal geneticinformation indicating that the infant would suffer fromDown syndrome thereby affording her with the opportunity toterminate the pregnancy in a timely manner.35 At trial, the judge determined that law recognizes the parents’ claimfor costs related to raising the child until the age of majority.
However, the court noted that the child’s claim for future income lossand care costs was not recognized. Distinguishing Cherry, the trialjudge noted that:36 I do not accept the contention that Cherry supports the claim advancedhere. There is no harm caused to the fetus by anything the doctor “misconceived” to argue that Cherry represents a decision that recognizes a“wrongful life” claim. Cherry was also distinguished in Lacroix, supra,footnote 14, at para. 25.
31. [1994] 8 W.W.R. 568, 93 B.C.L.R. (2d) 220, 21 C.C.L.T. (2d) 66 (B.C.S.C.), revd 126 D.L.R. (4th) 705, [1995] 7 W.W.R. 378, 100 W.A.C. 57, revd onother grounds [1997] 2 S.C.R. 539, 148 D.L.R. (4th) 48, [1997] 8 W.W.R.
303.
32. Ibid., at para. 1.
33. Ibid.
34. (1999), 44 C.C.L.T. (2d) 313 (B.C.S.C.).
35. Ibid., at para. 6.
36. Ibid., at para. 16.
negligently did, or failed to do. The harm to the fetus, in respect of whichdamages flowed here, relates solely to the genetic condition of the fetus.
The British Columbia Supreme Court further noted that it wasunable to reconcile the duty owed to the mother predicated upon themother’s right to choose whether or not to abort with a duty owed tothe fetus to terminate its life. Adopting the reasoning in McKay, thecourt thus concluded that the plaintiff infant had not alleged anycognizable duty or recoverable damages in this case.37 Accordingly,the infant’s claim was dismissed.
For a time, it appeared that the Lacroix decision had brought some degree of certainty to this area. However, the viability of wrongful lifeclaims was recently re-examined by a string of decisions of theOntario Superior Court of Justice beginning with Petkovic v.
Olupona.38 In Petkovic, the infant was born with congenitalabnormalities, including spina bifida and hydrocephalus. Hismother claimed that negligence on the part of the defendantphysician during prenatal care deprived her of the knowledge thather son would be born with the abnormalities and that, had sheknown, she would have had an abortion. Prior to trial, the defendantphysician brought a motion to strike out part of the claim fordamages for wrongful life. The motion was dismissed by the SuperiorCourt of Justice, which held that it was not clear, obvious and beyonddoubt that there was no action available for wrongful life.39 Inconsidering the issues on appeal, the Divisional Court noted thatthere were conflicting decisions on the issue of whether summaryjudgment should be granted in relation to claims advancing“wrongful life”. The court determined that it would not be anefficient use of resources to strike this portion of the claim beforetrial.40 Accordingly, the motion for leave to appeal the dismissal ofthe defendant’s motion was dismissed.
Another pre-trial motion that considered the viability of wrongful life claims was McDonald (Litigation Guardian of) v. O’Herlihy.41 Inthat case, a child was born with a neural tube defect. The plaintiffsbrought a negligence action against the mother’s physician forwrongful birth and wrongful life. Specifically, the plaintiffs allegedthat the defendants were negligent in failing to diagnose defects at 22weeks’ gestation. A motion was brought on behalf of the defendantphysician to strike portions of the plaintiffs’ claim under rule 37. Ibid., at para. 22.
38. Petkovic, supra, footnote 15.
39. Petkovic, ibid.
40. Ibid., at para. 27.
41. (2005), 5 C.P.C. (6th) 178 (S.C.J.).
21.01(1)(b) of the Rules of Civil Procedure on the basis that itdisclosed no reasonable cause of action. The Ontario Superior Courtof Justice dismissed the motion, noting that matters of law that havenot been fully settled should not be disposed of at the interlocutorystage.42 Interestingly, the court noted that although theoverwhelming weight of authority suggests that a cause of actiondoes not exist for wrongful life, there was no binding Ontario orCanadian authority speaking to this matter and, therefore, the mattershould proceed to trial.43 At trial, the judge concluded that the legal questions surrounding a “wrongful life” claim were moot and did not warrant determinationdue to the fact that the jury indicated that the defendant physicianshad not been negligent in their care of the plaintiff mother.44 Thisdecision was appealed to the Ontario Court of Appeal.45 Affirmingthe decision of the trial judge, the Court of Appeal noted:46 The trial judge concluded that liability questions could be put to the juryand fairly determined by them without instruction on “wrongful life”.
Even if the appellants’ trial counsel misunderstood how the trial judgeintended to proceed, as was alleged before this court, there was no erroror miscarriage of justice. The respondents owed the same duty of careand were held to the same standard of care in respect of the appellantmother and the fetus.
The Alberta Court of Queen’s Bench recently faced a pre-trial motion to strike out an infant’s claim on the basis that it disclosed noreasonable cause of action. In Holowaychuk v. Hodges,47 theplaintiffs, who were mother and daughter, brought an actionagainst the defendant physician after the daughter was born withserious physical and mental disabilities. The mother’s action againstthe defendant physician was for wrongful birth while the daughter’saction against the defendant physician was for wrongful life. Thestatement of claim alleged that the defendant physician was negligentin failing to inform the mother that she had a chromosomalabnormality. The mother asserted that if she had been informed ofsuch, she would have procured an abortion. Prior to trial, thedefendant physician brought a motion for leave to determine a pointof law before trial, i.e. whether a cause of action for wrongful lifeexisted in Canada. The Alberta Court of Queen’s Bench dismissed the 42. Ibid., at para. 16.
43. Ibid., at para. 14.
44. Ibid.
45. McDonald-Wright v. O’Herlihy (2007), 220 O.A.C. 110 (C.A.).
46. Ibid., at para. 18.
47. [2003] A.J. No. 287 (QL), 2003 ABQB 201 (Q.B.).
defendant physician’s motion. In so doing, the court noted that:“While a determination of the point of law in favour of Dr. Hodgesmay dispose of [the child’s] claim, it would not result in a great savingof time and money nor a considerable simplification of remainingissues.”48 The court noted that it had not yet been decided by a courtin Alberta whether a cause of action for wrongful life existed.
Finally, the Ontario Superior Court of Justice confronted the issue of wrongful life in its 2006 decision in Paxton v. Ramji.49 In Paxton,the mother was prescribed acne medication. Her husband hadundergone a vasectomy four and a half years earlier. The motherbecame pregnant, although a pregnancy test falsely indicated that shewas not pregnant at first. As a result of the in-womb exposure to themedication, the child was born with serious physical abnormalities.
The mother, father and child brought an action for damages againstthe physician. Specifically, they alleged that but for the defendantphysician’s prescription of the drug, the child would have been bornwithout defects.50 Reviewing the evidence, the court noted that thefacts of this case gave rise to two potential causes of action: the doctor’s failure to follow the Pregnancy ProtectionProgram prescribed for the use of Accutane, and the doctor’s prescription of Accutane in the face of a directcontra-indication to a woman of childbearing potential.51 With respect to the first cause of action, namely, the failure to followthe Pregnancy Protection Program, the court noted that this resultedin the infant plaintiff being conceived when, but for the failure, shewould not have been conceived.52 On this point, the court cited theevidence of the mother who testified that she would have compliedwith the defendant physician’s advice to use a condom, from which itcan be inferred that she would have continued the Accutane but theinfant plaintiff would not have been born. The court noted that thistype of claim must be characterized as wrongful life.53 Relying onLacroix, the court noted that wrongful life claims are not recognizedin Canada and that, therefore, the child had no viable cause of actionon this basis.54 With respect to the second cause of action, namely the doctor’s 48. Ibid., at para. 17.
49. Paxton, supra, footnote 32.
50. Ibid., at para. 77.
51. Ibid., at para. 76.
52. Ibid., at para. 209.
53. Ibid., at para. 209.
54. Ibid., at paras. 170 and 209.
prescription of Accutane in the face of a direct contraindication to awoman of childbearing potential, the court noted that this actioncreated a scenario where, but for the alleged negligence, the infantplaintiff would have had a life without birth defects; therefore, thiswould not be a “wrongful life” claim.55 The court noted that it wouldbe willing to recognize such a cause of action.56 However, it went on toobserve that, in satisfying himself that the plaintiff mother and hersole sexual partner had the benefit of an effective form of birth controlby way of a vasectomy four and a half years earlier, the physician hadmet the standard of care for the prescribing of the drug, which carriedteratogenic dangers.57 Accordingly, it concluded that Accutane wasno longer contraindicated and the defendant physician could not besaid to have breached the standard of care in prescribing it. The claimwas dismissed and the court noted that the child had no legallyrecognized claim against the physician.
4. Wrongful Life Claims — Recent International Prior to examining the decision of the Ontario Court of Appeal in Bovingdon, it will be useful to consider a number of internationalcases that have addressed the question of wrongful life. As we shallsee, in the majority of these cases, courts have affirmed that there is noviable cause of action for wrongful life.
Perhaps the most significant decision to emerge from the common law world in recent years was that of the Australian High Court inHarriton v. Stephens.58 In Harriton, the infant plaintiff brought anaction against her mother’s family physician for damages sustained inutero. The agreed statement of facts indicated that prior to the birth ofthe plaintiff, her mother had experienced a fever and noticed a rash.
Thinking that she might be pregnant, the plaintiff’s mother contactedher family physician. She explained to her physician that she might bepregnant and expressed concern that her illness might be rubella. Onher physician’s advice, the plaintiff’s mother underwent blood testingto determine whether she was pregnant and whether she had beenexposed to the rubella virus. The lab reports revealed that theplaintiff’s mother did in fact have rubella. Despite this, the defendant 55. Ibid., at para. 209.
56. Ibid., at para. 209.
57. Ibid., at para. 215.
58. (2006), 226 A.L.R. 391 (H.C.A.). The majority judgment in Harriton was written by Crennan J. (Kirby J. dissenting).
physician reassured the mother that the rubella virus had not causedher symptoms.59 The court in Harriton noted that it was agreed by all parties that if a duty of care existed, the defendant physician was negligent ininforming Mrs. Harriton that she did not have rubella and in failing toarrange further and more detailed blood testing. It was further agreedthat the defendant physician was under a duty to advise Mrs.
Harriton of the high risk that a fetus exposed to the rubella viruswould be born profoundly disabled. Finally, all parties were inagreement that, had Mrs. Harriton been advised of these risks, shewould have terminated the pregnancy.60 The infant plaintiff arguedthat the defendant physician had a duty “to diagnose rubella and thenadvise Mrs. Harriton that the only way to prevent a very high risk ofbearing a child with a grievous injury caused by rubella would be toterminate the pregnancy”.61 Writing for the majority of the court in Harriton, Crennan J.
addressed the problems that inhere in quantifying damages in thesecases. To this end, Crennan J. relied on a fundamental tenet of tortlaw, namely, that in order to establish a cause of action in negligence,a plaintiff must demonstrate that damage was sustained and thatthere existed a duty of care on the part of the defendant to avoidcausing such damage. On this point, Crennan J. cited with approval apassage from Professor Fleming’s treatise, The Law of Torts, in whichhe notes:62 Actual damage or injury is a necessary element (the gist) of tort liabilityfor negligence. Unlike assault and battery or defamation, where violationof a mere dignitary interest like personal integrity or reputation isdeemed sufficiently heinous to warrant redress, negligence is notactionable unless and until it results in damages to the plaintiff.
Crennan J. noted that a plaintiff must establish that he or she has been“left worse off as a result of the negligence complained about, whichcan be established by the comparison of the plaintiff’s damage or losscaused by the negligent conduct, with the plaintiff’s circumstancesabsent the negligent conduct”.63 In the context of wrongful life 59. Ibid., at paras. 20-21. The initial consult with Mrs. Harriton was undertaken by Dr. Max Stephens. Dr. Paul Stephens, Dr. Max Stephens’ son (a generalpractitioner in partnership with his father) conveyed the test results to Mrs.
Harriton and assured her that she did not have rubella.
60. Ibid., at para. 19.
61. Harriton, supra, footnote 58, at para. 221.
62. J. Fleming, The Law of Torts, 9th ed. (Sydney: Law Book Co., 1998), p. 216.
Cited from Harriton, ibid., at para. 218.
claims, Crennan J. noted that this comparison was problematicinsofar as it required the court to compare a disabled life with non-existence. Crennan J. noted that because non-existence cannot beexperienced, a court could make no logical assessment of whether it ispreferable to live with profound disabilities. To the plaintiff’ssubmission that damages should simply be assessed by comparingthe plaintiff’s life with that of a healthy child, Crennan J. noted thatthis would require that the court compare the plaintiff’s life with alegal fiction. On this point, he noted:64 The common law is hostile to the creation of new legal fictions and theuse of legal fictions concealing unexpressed considerations of socialpolicy has been deprecated. Employment of either of the legal fictionsproposed would have the effect of excepting the appellant from the needto come within well-settled and well-understood principles of generalapplication to the tort of negligence. Also, the heads of damages soughtto be recovered reveal the conceptual difficulty of assessing damages inrespect of the appellant’s claim. The appellant relies on conventionalawards of damages in personal injury. However, there cannot have beenany damage to the appellant’s earning capacity and none was claimed. Inrespect of the appellant’s special pain and disabilities caused by rubella,it was suggested that a comparison could be made in the light of theordinary range of usual experience of pain and disabilities. As to medicaland care needs, on the actual comparator, nothing is recoverable.
Applying these principles to the case at hand, Crennan J. noted:65 A life without special pain and disabilities was never possible for theappellant, even before any failures by Dr. Paul Stephens. Approachingthe task of assessing general and special damages, as suggested, has theeffect of making Dr. Paul Stephens liable for the disabilities, which hedid not cause.
Accordingly, Crennan J. concluded that an assessment of the plaintiff’s damages through the ordinary principles of tort law wasnot possible.
Notwithstanding his finding on the issue of damages, Crennan J.
turned to consider whether the defendant physician owed a duty ofcare to the infant plaintiff and, if so, the extent of this duty. Recall thatthe duty of care postulated in respect of the infant plaintiff was, asnoted above, “a duty upon [the defendant physician] to diagnoserubella and then advise Mrs. Harriton that the only way to prevent avery high risk of bearing a child with grievous injury caused by rubellawould be to terminate the pregnancy”.66 64. Harriton, ibid., at para. 269.
65. Ibid., at para. 270.
After a careful review of the jurisprudence of other jurisdictions, [It] is not to be doubted that a doctor has a duty to advise a mother ofproblems arising in her pregnancy, and that a doctor has a duty of care tothe fetus which may be mediated through the mother. However, it mustbe mentioned that those duties are not determinative of the specificquestion here, namely, whether the particular damage claimed in thiscase by the child engages a duty of care. To superimpose a further dutyof care on a doctor to a foetus (when born) to advise the mother so thatshe can terminate a pregnancy in the interest of the foetus in not beingborn, which may or may not be compatible with the same doctor’s dutyof care to the mother in respect of her interests, has the capacity tointroduce conflict, even incoherence, into the body of relevant legalprinciple.
Accordingly, the appeal was dismissed.
The Australian High Court reached a similar conclusion in the companion appeal to Harriton, Waller v. James; Waller v.
Hoolahan.68 In that case, following in vitro fertilization, a child wasborn suffering from Alpha-proteinase (ATS) deficiency inheritedfrom his father. The infant subsequently commenced a claim againstthe physicians involved in his father’s care. Specifically, the childalleged that if his parents had been alerted to the fact that ATSdeficiency could be transmitted genetically, they would have delayedattempts to conceive until after suitable testing had been undertakenor would have found donor sperm, or, if conception had alreadyoccurred, would have terminated the pregnancy.69 Writing for themajority in Waller, Kirby J. dismissed the infant plaintiff’s claims onthe basis of the reasoning established in Harriton.
The High Court of Singapore in the 2005 decision of JU and Another v. See Tho Kai Yin recently considered the viability ofwrongful life claims.70 In JU, the mother and infant brought claimsagainst the defendant physician for his alleged failure to advise theplaintiff mother of tests available to detect chromosomalabnormalities and for his failure to warn the mother that her ageheightened the risk of such abnormalities developing in the fetus. Theinfant was subsequently born with Down syndrome. At trial, the 66. Harriton, supra, footnote 58, at para. 221.
67. Ibid., at para. 249.
68. (2006), 266 A.L.R. 257 (H.C.A.) (hereafter Waller).
69. It is significant to note that the claim against one of the defendant physicians also involved an allegation that he had been negligent in managing themother’s pregnancy.
mother testified that had she been aware of the testing available, shewould have asked her doctor to perform these tests. She furtherpleaded that had she been made aware of the condition of the fetus,she would have terminated her pregnancy.71 The Singapore High Court found that the plaintiff was not credible, and that if she did not have an amniocentesis done in time, itwas by deliberate choice. The court noted that it was unlikely that shewould have had an abortion given the fact that the fetus was male andthat it would put her in better standing with her in-laws who did notapprove of the marriage of their son to a woman ten years his senior.
Furthermore, the court held that because the mother had previouslysuffered from cancer, she had been told that it would have beenunlikely for her to conceive. The court noted that under thesecircumstances, causation was not made out, as it was not convincedthat the mother would, in fact, have terminated the pregnancy.72 Notwithstanding its findings on credibility, the court did go on to consider the viability of wrongful life claims generally. Relying onMcKay, the court noted that at common law, a disabled child had nocause of action for wrongful life. Speaking to the public policyreasons that colour this issue, the court noted that:73 Such claims would be contrary to public policy as a violation of thesanctity of human life. The common law position has been adopted bythe English, Canadian and Australian courts. One such English case citedby the defendants is McKay where the appellate court struck out theclaim of a mother whose child was born disabled as a result of aninfection of rubella (German measles) while the child was in her womb.
The mother had sued the health authority and the doctor who had lookedafter her for allowing the child to be born alive. The doctor’s allegednegligence was in misleading the mother as to the advisability of anabortion and failing to inform or advise her of its desirability.
The court further noted that even if there was a breach of the duty onthe part of the defendant physician before the child was born, “thatbreach did not cause the child to suffer from Down syndrome — thecause was genetic”. Accordingly, the claims of both plaintiffs weredismissed.74 In the United States, wrongful life claims are statute-barred in all but three states. It is important to note that American courts haveconsistently rejected wrongful life claims. A brief synopsis of the mostsignificant American decisions will be canvassed below.
71. Ibid., at para. 51.
72. Ibid., at para. 75.
73. Ibid., at para. 96.
74. Ibid., at para. 100.
Becker v. Schwartz75 involved an action for wrongful birth and wrongful life against the defendant physician. The parents allegedthat the defendant’s failure to advise of an increased risk of Downsyndrome born to women over 35 or the availability of anamniocentesis resulted in the birth of a child with Down syndrome.
The parents alleged that had they undergone the test and the test hadindicated the presence of Down syndrome in their child, they wouldhave terminated the pregnancy.76 In the companion case to Becker, Park v. Chessin, a mother had given birth to a child afflicted with polycystic kidney disease. Theparents consulted their doctor to determine the likelihood of possiblerecurrence in future children and were allegedly advised that thechances of conceiving a second child afflicted with the disease were“practically nil”. A second child was subsequently born with thedisease and the parents later learned it was an inherited condition.
They asserted that had they known this, they would have chosen notto conceive again.77 Both Becker and Park were heard together andJasen J. wrote the decision of the majority of New York’s Court ofAppeals. Jasen J. concluded that a child does not have thefundamental right to be born as a whole, functional being, anddamages recoverable on behalf of infants were not ascertainable.
Specifically, the court noted:78 There is no precedent for recognition at the Appellate Division of “thefundamental right of a child to be born as a whole, functional humanbeing” . . . Whether it is better never to have been born at all than to havebeen born with even gross deficiencies is a mystery more properly to beleft to the philosophers and the theologians . . . Not only is there to befound no predicate at common law or in statutory enactment for judicialrecognition of the birth of a defective child as an injury to the child; theimplications of any such proposition are staggering. Would claims behonored, assuming the breach of an identifiable duty, for less than aperfect birth? And by what standard or by whom would perfection bedefined? . . . Simply put, a cause of action brought on behalf of an infantseeking recovery for wrongful life demands a calculation of damagesdependent upon a comparison between the Hobson’s choice of life in animpaired state and non-existence. This comparison the law is notequipped to make.
Accordingly, the claims of the plaintiff infants were dismissed.
Another significant American decision is that of the Supreme 75. 386 N.E. 2d 807 (Court of Appeals of New York 1978).
76. Ibid., at para. 810.
77. Ibid., at para. 809.
78. Ibid., at para. 812.
Court of New Jersey in Procanik v. Cillo.79 In that case, the plaintiffinfant sought damages for birth defects allegedly caused by thedefendants’ failure to diagnose rubella in the first trimester of hismother’s pregnancy. The infant alleged that the defendantsnegligently deprived his parents of the choice of terminating thepregnancy. Accordingly, the plaintiff infant claimed both general andspecial damages from the defendants.
Affirming an earlier decision of the California Supreme Court,80 the court in Procanik held that a plaintiff infant may recover specialdamages in a wrongful life action but may not recover generaldamages. To the claim for general damages, the court noted that thesewere not ascertainable. The court noted that in this case, the plaintiffinfant never had a chance of being born as a normal, healthy child. Hisonly choice was a life burdened with handicaps or no life at all.81 Finally, the Supreme Court of South Carolina recently entered into the debate over the viability of wrongful life claims in its decisionin Willis v. Wu.82 In Willis, the infant plaintiff brought an actionagainst the defendant physician for failing to properly interpret themother’s ultrasounds and failing to diagnose hydrocephalus in thechild in utero. The child was subsequently born alive with severalbrain lobes missing.83 The Supreme Court of South Carolina heldthat South Carolina does not recognize a common law cause of actionfor wrongful life brought by or on behalf of a child born withcongenital defects. The court noted that the reasoning behind thislack of recognition is based on the impossibility of proving that beingterminated by elective abortion is better than being born and living alife with disabilities. On this point, the court noted that it is untenableto maintain that a child who had already been born should have thechance to prove it would have been better off if it had never been bornat all. Significantly, the court noted, “the minority of Courts allowinga wrongful life action have not focused on this question”.84 Outside the common law world, wrongful life claims have had limited success. In 2001, the French Cour de Cassation affirmed alower court ruling that had awarded the infant plaintiff damages for“wrongful life”.85 In that case, the plaintiff, Nicholas Perruche, wasborn with severe disabilities. Evidence revealed that four weeks into 79. 478 A. 2d 755 (N.J. Sup. Ct. 1984).
80. See Turpin v. Sortini, 182 Cal. Rptr. 337 (Cal. Sup. Ct. 1982).
81. Procanik, supra, footnote 79, at para. 6.
82. 362 S.C. 146 (S.C. Sup. Ct. 2004).
83. Ibid., at para. 150.
84. Ibid., at para. 162.
85. Perruche, Cass. ass. ple´n., Nov. 17, 2000, JCP 200 II 10,438.
his gestation, his four-year-old sister had contracted the Germanmeasles. Worrying about the effect that exposure to the measles couldhave on the fetus, the mother-to-be told her physician that if she testedpositive for the measles, she wished to have an abortion. The bloodtests returned contradictory results. Rather than seeking to clarify theresults, the defendant physician told his patient that she could “safelycontinue her pregnancy”. Affirming the lower court judgment thathad awarded the plaintiff damages, the Cour de Cassation noted thatsince the defendant’s errors “had prevented Mrs. Perruche fromexercising her choice to end the pregnancy in order to avoid the birthof a handicapped child, the latter can ask for compensation fordamages resulting from his handicap”.86 Similarly, the SupremeCourt of Israel recently allowed a wrongful life claim.87 A claim forwrongful life has also been upheld pursuant to the Dutch Civil Codein the Netherlands.88 5. The Decision of the Court of Appeal in Bovingdon As the discussion above demonstrates, it is widely recognized that courts in the common law world have “struggled” for decades overthe legitimacy of “wrongful life” claims at law. At the heart of thisstruggle is what the court in Bovingdon defined as the “key question”,namely, “if a child would not have been born at all without thedoctor’s negligence, can such a child sue the doctor for the value of thedifference between a life burdened with physical or mental defects andno life at all?”.89 As we have seen, other fundamental questions flowlogically from this first consideration. For instance, how can thecourts compensate a child for having been born? How do judgesassign damages in ways that measure the value of no life as opposed toa “damaged life”? In Bovingdon, the court went so as far as to invoke ametaphysical perspective asking, “does it make sense to allow such anaction, given that if the child had not been born, he or she would nothave been able to bring the action at all?”.90 It will be useful to review briefly the facts in Bovingdon. In Bovingdon, an action was brought against the physician by themother, grandmother and sister of twin girls and by the girlsthemselves, who were born severely disabled. The action was based 86. Ibid. Public outcry following the release of Perruche ultimately led to a 87. Zeitsov v. Katz (1986) 40(2) PD 85 (Sup. Ct.).
88. Leids Universitair Medisch Centrum v. Kelly Molenaar. Hoge Road, 18 89. Bovingdon, supra, footnote 1, at para. 37.
90. Ibid.
on the physician’s alleged failure to provide the mother with theinformation necessary to make an informed decision about whetherto begin taking the fertility drug, Clomid. It was alleged that thephysician failed to inform the would-be mother of the full extent ofthe risks of taking the drug, of the potential of having twins, of thepotential for premature birth, and of the possible injury to the twinsarising as a result.
At trial, the jury found the doctor negligent for failing to provide the necessary information to the would-be mother. The jury alsofound on the issue of causation that the would-be mother would nothave taken Clomid if she had been properly informed of the attendantrisks. One of the most compelling issues to emerge from theBovingdon trial was the trial judge’s decision that, as a matter oflaw, the physician owed a duty of care to the twins and, since he breachedthat duty, they were entitled to recover damages, as were their parents.91The trial judge reasoned that this was not a case of wrongful life sincethis was not a case where the doctor’s negligence merely caused thetwins to be born; rather, the doctor’s negligence caused the twins to beborn, and to be born with injuries. Further, the trial judge reasonedthat the prescribed Clomid caused the twinning at conception, thetwinning in turn caused the premature births, and premature birthscaused the damage to the children. In short, it was the decision toprescribe Clomid, without a full and proper warning of risks to thewould-be mother, which established the causal chain to the injuries.92 The appeal was made on three grounds: first, that the jury’s verdict on causation was unreasonable; second, that the trial judge erred inconcluding that this case was outside the ambit of wrongful lifeactions, since Canadian jurisprudence does not recognize this as acause of action; third, the trial judge erred in the interpretation andapplication of the Supreme Court of Canada’s decision in Krangle v.
Brisco.93 The second enumerated ground is of central concern to our analysis. The question is whether the trial judge erred in holding thatthe infants’ claim did not constitute a “wrongful life” claim. If theseclaims are found to be claims for “wrongful life”, is there a cause ofaction in Ontario for “wrongful life”? As we have seen, in assessingsuch claims, the court in Bovingdon posed the following “keyquestion”: “if a child would not have been born at all without thedoctor’s negligence, can such a child sue the doctor for the value of the 91. Bovingdon v. Hergott (S.C.J.), supra, footnote 1, at paras. 9-10.
92. Ibid., at para. 17.
93. [2002] 1 S.C.R. 205.
difference between a life burdened with physical or mental defects andno life at all?”.94 One of the major shortcomings of the Bovingdon appeal decision is that this “key question” is never confronted fully. To be sure,Feldman J.A. raised at least nominally the policy concerns expressedin McKay.95 She acknowledged, for instance, the conceptualproblems presented by the notion of “non-existence” and thedifficulties courts encounter in attempting to compensate disabledplaintiffs for having been born. In this regard, the court clearly wascognizant of the rationale, as expressed authoritatively in McKay,that continues to inform judicial rejection of wrongful life claims inthe common law world. At the same time, Feldman J.A. was preparedto interrogate this rationale, invoking the argument advanced bysome academics and activists that courts should ignore theconceptual problems associated with the non-existence issue, andfocus instead on achieving “full compensation” for disabled plaintiffsand their families.96 For those who would defend continued judicial rejection of wrongful life claims, Feldman J.A.’s rationale here is especiallytroubling. Feldman J.A. does little more than suggest that it might beplausible to dismiss the non-existence issue, thereby giving shortshrift to the long line of judicial reasoning, grounded in policyanalysis and traditional tort law principles, which holds that theproblem of quantifying damages for wrongful life is fatal in law torecognizing these claims.
The point here is that the court in Bovingdon appeared to be chipping away at the principles established in McKay, albeit in subtleways and without a clear sense of purpose or direction. After all, in theBovingdon decision, Feldman J.A. determined that the case at bar didnot require her to deal with the viability of the wrongful life claim butrather whether the defendant owed a duty of care to the plaintiffs.
What, then, was the purpose of identifying wrongful life as a “keyquestion”, only to set it aside as tangential to the case at hand? In addition to chipping away at the McKay framework, Feldman J.A. called into question the viability of the “two-category approach”established in Lacroix.97 The court in Bovingdon described theLacroix framework as inadequate in that it fails to provide “acoherent theory that can assist the courts in making the difficultdecision of when a child should be able to recover damages from a 94. Bovingdon (S.C.J.), supra, footnote 1.
95. Supra, footnote 3.
96. Bovingdon (C.A.), supra, footnote 1, at para. 54.
97. Supra, footnote 14.
doctor for being born with disabilities”.98 For the appeal court inBovingdon, the second category — the wrongful life category — was“fairly clear”. Such instances involve cases where the damage to thechild was not caused in any way by the physician’s negligence. Rather,the doctor’s negligence in such cases usually entails failure to informpatients of risks, improperly performing tests, failing to disclose fullyor properly test results; in short, failures that effectively prevent theparents from “choosing to avoid conceiving a child who could beborn with disabilities or the mother from terminating a pregnancywhere damage has already occurred”.99 According to the Court of Appeal, the problem with the Lacroix two-category approach is that it allowed the court to overlook thepossibility that the facts of that case belonged to the first category —where the physician may have caused or contributed to damage byeither damaging the fetus in utero, and also may have caused orallowed the child to be born. According to the appeal decision inBovingdon, the difficulty with the Lacroix decision is that the courthere “effectively overlooked the damage and placed the case incategory two”.100 As Feldman J.A. observed, “[i]n my view, withrespect, Lacroix fits much more easily into category one than does thecase at bar”.101 In Lacroix, the epilepsy drug actually harmed thechild. In the Bovingdon case, the Clomid had no pharmacologicaleffect on the children. Dr. Hergott did not cause the damage to thechildren. Rather, by failing to give Mrs. Bovingdon all theinformation she needed to decide whether to take the drug toaugment her fertility, he caused or contributed to the birth of thetwins.102 The court in Bovingdon went on to reason that prescribing Clomid was not contraindicated and was not in itself a negligent act.
Accordingly, the trial judge erred by finding that the case at bar fellinto the first category rather than the second category established byLacroix. According to Feldman J.A. both Lacroix and the Bovingdoncase involved a failure to provide the mother with “full information sothat she could choose the course of action she wished to take”.103Accordingly, Feldman J.A. concluded that the physician owed noduty to the unborn child in this case.104 98. Bovington (C.A.), supra, footnote 1, at para. 55.
99. Ibid., at para. 56.
100. Ibid., at para. 58.
101. Ibid.
102. Ibid.
103. Ibid., at para. 60.
104. On this latter point, the Court of Appeal relies on the decision of the What is not clear in the court’s reasoning here is why the case at bar, which Feldman J.A. held clearly did not involve a wrongful life claim,should occasion reconsideration of the viability of wrongful lifeclaims at law. In this regard, it is not helpful, or even necessary, forFeldman J.A. to characterize the Lacroix framework as“inadequate” while offering no principled framework to stand in itsplace. After all, as Feldman J.A. reasoned, the policy concern ofwhether a wrongful life claim should exist at law was “obviated” in thecase at bar. As Feldman J.A. noted,105 Furthermore, it is undecided whether the courts of this province wouldnecessarily dismiss every claim for “wrongful life”. A proper considera-tion of this question would require the court to address the policy issue ofwhether such claims should exist in our law. In this case, the issue isobviated because I have found that although the doctor breached his dutyof care to the mother to give her full information to allow her to make aninformed decision about whether to take Clomid, he owed no duty ofcare to the unborn children when prescribing Clomid to a woman whowished to become pregnant.
Moreover, Feldman J.A.’s concern about the adequacy of Lacroix’s two-category approach as an effective “mechanism” todetermine whether a cause of action exists could easily be dealt with inconcrete ways by relying upon expert evidence to determinecausation. In short, it was simply not necessary to question thevalidity of Lacroix in order to determine the chain of causation. As wehave seen, Feldman J.A. was able to determine definitively that theClomid had “no pharmalogical effect” on the children in question. Inthis way, the Lacroix framework can continue to assist courts inmaking what Feldman J.A. acknowledged as the “difficult decision”of when a child is entitled to damages for being born withdisabilities.106 The Bovingdon decision constitutes a lost opportunity to make a clear, definitive statement rejecting wrongful life claims in law. Sincethis was a case where the court had a full evidentiary record before it,it should have seized the opportunity to make a clear finding and setthe parameters of a principled framework to inform judicialreasoning in this field. Feldman J.A. was correct to observe that Supreme Court of Canada in Dobson (Litigation Guardian of) v. Dobson,[1999] 2 S.C.R. 753, 174 D.L.R. (4th) 1, 214 N.B.R. (2d) 201.
105. Bovingdon (C.A.), supra, footnote 1, at para. 73.
106. Ibid., at para. 55.
judicial consideration of the viability of wrongful life claims willrequire the courts to consider the relevant policy issues. Yet, unlikecourts elsewhere in the common law world, the court in Bovingdonprovided no such consideration. Indeed, while leaving the door openfor sustainable wrongful life claims, the court in Bovingdon providedno sustained, compelling policy rationale to justify undermining theprinciples laid out in McKay or the approach established in Canadianjurisprudence by Lacroix.
The principles established authoritatively by McKay, and affirmed by courts throughout the common law world, continue to militateagainst judicial recognition of wrongful life claims. Since nocompelling policy reasons exist to justify allowing wrongful lifeclaims, it is clear that plaintiffs who wish to advance such claims facean uphill battle. Ultimately, the Supreme Court of Canada will needto determine this issue.

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