The Tenability of the Constitutional Court’s Arguments in Support of the Possible Recognition of Wrongful-Life Claims in South Africa

Authors Anton van Loggerenberg

ISSN: 1996-2177
Affiliations: Advocate of the High Court of South Africa
Source: South African Law Journal, Volume 134 Issue 1, 2017, p. 162 – 183


This article is a critical analysis of the Constitutional Court’s arguments relating to the potential recognition or viability of wrongful-life claims in the South African law of delict as set out in H v Fetal Assessment Centre 2015 (2) SA 193 (CC). The article illustrates how the Constitutional Court’s attempt to justify the recognition of this claim within the context of an Aquilian action by application of inter alia the child’s constitutional right to have his or her best interests regarded as paramount in all circumstances concerning the child, is untenable. It accordingly considers the prospects of establishing harm-causing conduct, wrongfulness and causation in order to succeed with the actio legis Aquiliae in addition to the possibility of claiming constitutional damages.