Case Number

CA 1326/07

Date Decided

5-28-2012

Decision Type

Appellate

Document Type

Full Opinion

Abstract

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

This opinion is a result of cases joined together in order for the Court to resolve the general questions regarding the cause of action known as “wrongful birth”. This issue arises when a person born with a congenital disability claims that careful conduct by petitions – usually medical professionals who treated the pregnant mother – would have entirely prevented that person’s birth. Two distinct causes of action might be triggered by the negligent conduct: a claim by the parents and the claim by the child. These claims were recognized 25 years ago in the Supreme Court’s decision in CA 518/82 Zeitzov v. Katz (“Zeitzov decision”). The child’s claim is termed “wrongful life”, and thus is distinguished from the parent’s claim, termed “wrongful birth”. All five justices who sat on the Zeitzov panel found that there is no bar to recognizing the parents’ claim – the “wrongful birth” claim – as a subset of the tort of negligence and according to the general principles of tort law. The dispute, even back then, revolved around the issue of recognizing a claim by the child. In a majority ruling, the Court recognized the child’s claim of “wrongful life”. Still, the four justices of the majority were split on the reasons for recognizing the “wrongful life” cause of action and therefore were also split on the question of quantifying damages. This fundamental question was left unresolved there. As a result, in the years since the decision, real difficulties have arisen in applying the principle rule about recognizing a child’s claim of “wrongful life”. In the absence of binding precedent, the Zeitzov decision was implemented inconsistently. In light of these difficulties and in light of the need to resolve additional related issues, we joined the discussion.

The Supreme Court, in an expanded panel of seven justices (authored by Deputy President E. Rivlin) ruled that:

The child’s claim of “wrongful birth” can no longer be recognized. Each of the two different modes of reasoning that support the “wrongful life” as presented by the Court in Zeitzov hold significant legal challenges that go both to the element of damage and the element of causation, making it difficult to recognize this cause of action under the tort of negligence. Deputy President Ben-Porat’s approach inevitably leads to finding that there are situations where it would have been preferable for one not to have been born at all. This finding cannot be based on any legal foundation and should not be based on any morals or values. In the absence of such findings, the element of damage in a wrongful life claim cannot be proven. President Barak’s position in Zeitzov is also problematic as there is no causal link between the breach and the damage of life with a disability. But beyond these legal difficulties, there is a moral difficulty in the view that the life of one born with a disability can be considered – in the eyes of the child itself – as “damage”. The finding that it is better for a certain person not to have been born at all carries the impermissible implication that life has no intrinsic value, that is not reduced – and certainly not eliminated – due to a disability. This view is a necessary and important part of our recognition and belief in the sanctity of life, human value and dignity, and the rights of people with disability to dignity and equality. This position is reflected in the jurisprudence of courts in common law countries as well.

That said, there is neither law nor principle preventing the recognition of the parents’ cause of action for “wrongful birth” – a cause of action whose recognition is not in dispute. On this issue there is no place to do away with the ruling in Zeitzov.

Alongside the general recognition of the parents’ claim of wrongful birth, the Court found it appropriate to address three issues arising from this claim. These were not discussed in Zeitzov in depth and it is time for this Court to establish clear precedent about them. These issues concern the matter of proving causation, quantifying damages, and damage, specifically for infringement of autonomy.

Ruling on these issues ultimately led to a significant expansion of the “wrongful birth” cause of action of parents, who may be compensated for expenses incurred in raising the child and providing for its needs throughout the child’s life. In this manner, the Court (here) realizes the worthy objective at the basis of the Zeitzov decision – to compensate as fully as possible for the medical and rehabilitative needs and the care of a child born with a disability, but to do so through the parents’ wrongful birth claim.

Proving causation: insofar as parents wish to bring a cause of action for “wrongful birth”, they must prove the existence of a causal connection. To prove this causal link between the breach of duty of care and the different damages caused by the disability, they must show, as the first stage, that had the committee for pregnancy terminations possessed all relevant medical information (information that was not provided to the parents because of the negligent conduct) it would have permitted the parents to terminate the pregnancy. At the second stage, and only if the answer to the first question is in the affirmative (otherwise the causal link is broken anyway), the parents must show that but for the breach of duty of care, they would in fact have approached the committee for pregnancy terminations for permission.

Because of the difficulties the second stage causes, significant weight should be given to the first question in terms of causal link – the question whether the committee for pregnancy terminations would have permitted termination in a particular case. In addition it is appropriate that the decision by the committee for pregnancy terminations would serve as a rebuttable presumption regarding the parents’ position on termination. Further, general factors, such as allegiance to a particular religion group,do not suffice to rebutt the presumption that if the committee had permitted the termination then the parents would have approached it with a request. These factors may be relevant, but since they might reflect a single aspect among the entirety of the woman’s individual circumstances, much caution must be taken when drawing any conclusions based on that aspect. Therefore, for instance, it is insufficient that the parents’ religion may forbid them from terminating a pregnancy; the court must be persuaded that the mother would have actually obeyed the religious prohibition. Finally, it must be emphasized that, when it is proven that the committee for pregnany terminations would have permitted a termination, the parents' failure to prove that they would have chosen to terminate the pregnancy does not negate their possible claim for damages due to the violation of their autonomy, that is, their right to make such an important decision about their lives in an informed manner. For this damage, they are entitled to separate compensation.

The issue of damage and quantifying compensation: the parents are entitled to compensation from the defendant for the additional expenses required to fulfill their child’s medical needs and provide the child with care, and when, because of the disability, the child continues to depend on them beyond childhood, they are entitled to compensation for expenses they incure for the rest of the child’s life. This includes ordinary maintenance expenses, at least to the extent that there the child has limited income potential and there are no special circumstances that deny this right. When a child is expected to have an income despite the disability, the expected income is to be deducted, that is, the appropriate rate of the average wages must be deducted from the compensation to the parents.

General damages: in cases of wrongful birth the mental and psychological harm continues throughout the parents’ (plaintiffs) lives. This damage is different and separate from the harm to autonomy, which is a one-time harm that occurs at the moment where choice is denied them. The ongoing and excruciating mental harm therefore warrants a significant level of compensation.

Violation of autonomy: the question of the link in the parents' suit between the causes of actions for wrongful birth and violation of autonomy is that in some cases where the harm to the parents for denying their right to autonomy – to decide whether to continue a pregnancy or to terminate it – can be distinguished from other harms and where violation of autonomy is an additional, substantial harm that goes to the core of the right, the violation of autonomy must be separately compensated (in addition to their right to claim compensation for any other direct damage caused to the parents). As for the extent of the compensation – the compensation must be individual, considering the concrete violation and its circumstances. That said, it has already been found that since this is an estimate of general damage, courts would make this estimate based on the circumstances and judges’ life experiences. As a general rule, the extent of the compensation for violation of autonomy must be directly proportional to how material the missing information was and how the violated interest was to the core of the right and how much it implicated that right. Where the court was persuaded that the plaintiff’s autonomy had been violated in a way that reaches the core of that right and on a material aspect, it must grant appropriate compensation that reflects the full severity of the violation.

The Matza Commission recommended that the legislature “authorize the courts to include in their decisions instructions regarding the use of the financial compensation, as much as the court may see fit to do so in order to ensure the child’s needs are met. Additionally, we recommend legislation stating that the compensation designed to guarantee the needs of the child would not be considered property of the parents in case of bankruptcy, nor would it become part of their estate or be available for any garnishment or enclosure of any kind.” These recommendations are wise and reasonable, not just for this cause of action, but more broadly as well. We hope that the legislature will answer this call, and that until then courts develop the appropriate mechanisms with the tools at their disposal.

The outcome: in terms of abolishing the child’s cause of action, it will not apply to pending cases where the parents’ suit was not brought. Justice Rubinstein, in concurrence, believes that the outcome of this decision should be stayed for a year, and Justice Naor points out that there is no place to determine, through a transitional provision in the matter at hand, the fate of a child’s claim that has not yet been brought.

Justice Rubinstein believes that we are replacing a theoretically and practically difficult system with one that has no theoretical challenges but gives rise to practical difficulties. However, at the end of the day, he joins in principle the opinion of the Deputy President, while pointing out the difficulties and calling upon the legislature to pronounce upon the issue.

Keywords

Administrative Law -- Judicial review, Constitutional Law -- Basic Law: Human Dignity and Liberty, Family Law -- Parenthood, Torts -- Breach of statutory duty, Torts -- Compensation, Torts -- Exemptions from liability, Torts -- Fault, Torts -- Medical malpractice, Torts -- Negligence, Torts -- Wrongful birth

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