Liability for ‘wrongful pregnancy’ in medical malpractice: What are the boni mores of the community?

February 1st, 2025
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What do you do when you have made the decision to no longer have children, but the medical procedure to ensure that either fails or did not take place at all, and thereafter you find yourself with an unintended pregnancy?

South Africa’s first attempt at the issue was in the case of Administrator, Natal v Edouard 1990 (3) SA 581 (A), where Edouard’s claim was founded in a breach of contract. On the birth of their third child, Edouard contracted for a tubal ligation to be performed, but the Administrator failed to do so, resulting in the conception and birth of Edouard’s fourth child, and their claim before the courts. The court a quo found the Administrator to have breached the terms of the contract and was ordered to pay Edouard a sum of money as a patrimonial loss through the birth of their fourth child.

The Administrator appealed the decision to the Appellate Division (as it then was), and the court acknowledged that a claim for a wrongful pregnancy is novel to our courts, and international law was not helpful to guide the courts because various countries that have heard wrongful pregnancy cases have made findings depending on, inter alia, the health of the child, the number of children the parent already has, the joys of parenthood and the patrimonial loss suffered in supporting and maintaining the child born of the wrongful pregnancy. The findings of England, Canada and the United States could not be followed because the factors relied thereon had no strong foundation on the actual claim or reason for the litigation for the parents.

The Appellate Division highlighted that the reason why the parents would have chosen sterilisation and tubal ligation should have legal significance because it is against this backdrop that the ensuing action is before the courts. The Edouard family could not financially afford to support a fourth child, and the Administrator was aware of this but still failed to honour its part of the contract. The Administrator relied on public policy in its appeal, stating that placing the obligation to care for and maintain the fourth child on the Administrator would be shifting the parental responsibilities. The Division dismissed this and stated that the Administrator cannot hide behind public policy for breaching a contract that was valid and enforceable, and added further that the issue before the court is not that the child is unwanted, but rather the expenses relating to the maintenance and upbringing of the child are unwanted. The court upheld the decision of the court a quo that the Administrator breached the terms of contract in failing to perform the sterilisation and was liable to pay the patrimonial losses claimed therein.

The Edouard judgment was the first of its kind in South Africa for a wrongful pregnancy, and the case of Mukheiber v Raath and Another 1999 (3) SA 1065 (SCA) was also the first of its kind for a wrongful pregnancy claim based in delict. The Supreme Court of Appeal (SCA) found that all the material elements for an Aquilian action had been proven by the plaintiff and the medical practitioner had been negligent in failing to perform the sterilisation. What can be deduced from the two cases, decided almost a decade apart, is that the failure to perform a medical task resulting in a wrongful pregnancy and eventual maintenance of a child that was not on the cards for the parents can result in the medical practitioner being found to be responsible for the financial aspects required in the upbringing of the child.

The case of Rensburg and Another v Cilliers (FB) (unreported case no 1705/2021, 20-9-2024) (Daffue J) before the Free State Division of the High Court in Bloemfontein breathed new life into the topic with an interesting set of facts different from the two previous cases decided by the Appellate Division and SCA respectively. Rensburg engaged Dr Cilliers for a sterilisation procedure in 2016, but she conceived a child in 2018 and confronted Dr Cilliers about it. The child was eventually born and in 2021 Rensburg instituted action against Dr Cilliers for support of her minor child founded in breach of contract and delict, or alternatively both.

Unfortunately, the matter before the Bloemfontein High Court was dismissed on the basis that the claim had prescribed by the time legal action had been taken by Rensburg. The matter would have been fascinating with regard to the development of the law since the first case of wrongful pregnancy was decided more than three decades ago, and in light of the vast difference in the facts. In the Edouard and Mukheiber cases, the plaintiffs instituted action shortly after the wrongful pregnancies had taken place, and they had previously established relationships with the defendants, particularly with the knowledge of the reproductive health and financial settings of the plaintiffs.

It is also noteworthy that at the time of the conception and birth of the children resulting in the claims for support and patrimonial loss in the Edouard and Mukheiber cases, that is, between 1982 and 1994, the Abortion and Sterilization Act 2 of 1975 was in place and ss 2 and 3 of the Act prohibited abortion unless conception posed serious health risks to the woman or was a result of unlawful carnal intercourse (defined as rape and incest in the Act). This means that a woman, even if there were no health concerns with her pregnancy, was not allowed to terminate the foetus of an unborn child. Section 2 of the Abortion and Sterilization Act was repealed by the Choice on Termination of Pregnancy Act 92 of 1996.

The Choice on Termination of Pregnancy Act was promulgated on 12 November 1996, just a few months before the Constitution of the Republic of South Africa, 1996 came into force. The Act underpins the constitutional rights to bodily integrity and security of the person, dignity, right to life and right to privacy that were previously not available under the Abortion and Sterilization Act. The Rensburg case was before the courts two decades into the existence of the Choice on Termination of Pregnancy Act, and the woman concerned therein had the option to terminate the pregnancy, whereas in the Edouard and Mukheiber cases, such choice was previously unavailable and liability for the unintended pregnancy as a result of medical negligence was the only form of remedy available to the parties. This does not indicate that the remedy is unavailable for the Rensburg case. Rather, the Choice on Termination of Pregnancy Act, together with the Constitution, indirectly indicates that the scope of medical practitioners’ liability in wrongful pregnancy cases can be reduced, aligning with the current boni mores of the community and minimising the notion of medical practitioners being viewed as the ‘surrogate parent’ of the child.

It is unfortunate that the case in Rensburg could not be heard because the claim was out of time, it would have been a curious case in showing the development of the law since precedent had been set in Edouard in 1990.

Vuyo Sobantu LLB (UKZN) is a legal practitioner at Stowell and Co Inc in Pietermaritzburg.

This article was first published in De Rebus in 2025 (Jan/Feb) DR 29.

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