Hong Kong High Court does not recognise cause of action for wrongful life

Lam Wing Hei (a minor suing by her mother and next friend Lam Tsz Kiu) and Anor v Hospital Authority [2018]

Date published

03/08/2018

Sectors

Locations

The Hong Kong High Court recently struck out a wrongful life claim brought by an infant plaintiff against the Hospital Authority of Hong Kong.

Background

This case concerned a disabled baby born in 2012. The baby’s case rested on the allegation that the hospital that managed its mother’s pregnancy owed a co-extensive duty of care to the baby in utero to inform the mother as to:

  1. the existence of a chromosomal defect allegedly detected during the pregnancy
  2. its associated risk to the baby suffering or developing serious deformities, disabilities or genetic impairment.

It was alleged that as the hospital did not inform the mother of these risks, the baby was deprived the opportunity of not being alive, as the mother would have opted to terminate the pregnancy.

Decision

It was decided that Hong Kong does not recognise a cause of action for wrongful life and the claim was dismissed.

The court was primarily concerned with whether wrongful life claims are barred by the provisions of the Law Amendment and Reform (Consolidation) Ordinance Cap 23 (LARCO). Mr Justice Bharwaney came to the conclusion that it was for the following reasons:

  1. Formation of the legislation - as a bill, LARCO was based upon the Congenital Disabilities (Civil Liability) Act 1976 of England (the 1976 Act). As such, both contain nearly identical provisions, any differences being wholly immaterial to wrongful life claims.
  2. The 1976 Act – whilst it confers rights on children injured before birth from a pre-natal event caused by the fault of others, it does not assist those whose disabilities resulting from inherited characteristics or natural illness.

The conclusion from this is that there was no wrongful life action pursuant to the legislation and so it is not necessary to consider the common law position.

Sanctity of life

The court also commented that there is no common law right of action for a foetus to be aborted.  It was noted that although the sanctity of life principle is not paramount, this cause of action was based on the right of a foetus to be aborted, which does not reflect the general values held by Hong Kong community. 

Bharwaney J’s finding on the common law position was not based on the fact that the cause of action is dependent on the subjective decision of the mother to terminate, nor motivated by potential risks of floodgates and defensive medicine.  The most compelling argument to him was that it is impossible to establish that non-existence is preferable to life with disabilities to the child.

Comment

This case will be the first precedent in Hong Kong on this issue and could be seen as an authority of weight and persuasive value to other common law jurisdictions.

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Wrongful pregnancy: UK Courts continue to refuse compensation
Healthcare Brief: latest decisions June 2017