Legal liability for failure to prevent pregnancy (wrongful pregnancy)

Abstract

Can the conception of a child ever constitute damage recoverable in law? This article considers the liability of healthcare practitioners for failing to prevent a pregnancy. Developments leading to the recognition of wrongful pregnancy as a cause of (legal) action in South Africa (SA), are briefly outlined. The salient points of the relevant judgments by SA courts are set out to expose the rationale underlying the judgments and to highlight that recognition of liability for wrongful pregnancy resulted from an application of fair and equitable principles of general application. Conduct that could expose practitioners to liability is identified from reported cases and inferred from general principles laid down in case law.

Keywords

• Law
• Wrongful pregnancy
• Wrongful conception
• Liability for failing to prevent pregnancy
• Vasectomy
• Tubal ligation
• Misrepresentation
• Delict
• Breach of contract
• Contraception
• Mukheiber v Raath
• Edouard v Administrator
• Natal