Disability Harm and Wrongful Life Torts

Abstract

Impairment, in particular those that are multiple and of a severe nature, requires extensive resources in order for the person concerned (and often, their families) to have full equalisation of opportunities and a reasonable quality of life. Support and financial assistance provided by governments though welfare systems are becoming less available and when available involve considerable time delays. As a last resort, many disabled people look to the court system by way of case law for remedies that provide financial solutions. The opening epigrams of the chapter invoke notions of persuasion.

Wrongful life and wrongful birth case law is plagued by folk demons and moral panics in the same way that increasing knowledge of human genetics brings with it inchoate fears of eugenic excess and monstrosity.

(Mackenzie, 1999, p. 178)

… the good advocate grasps at complex confused reality and constructs a simple clear-cut account of it… a case is very much an edited version [and] it is not just edited into a minimal account — a microcosm of the incident — it is an account edited with vested interests in mind … The good advocate is not concerned with reproducing incidents but producing cases, not with truth but with persuasion.

(McBarnet, 1983, p. 17)

It is understandable that a parent desires to have not only a healthy, but also a beautiful and intelligent baby: the best and the happiest baby in the world. At the same time, however, nobody can be sure that a healthy child will be a happy person, nor that a disabled person will necessarily be an unhappy person.

(Marzano-Parisoli, 2001, p. 659)