Locus Standi to sue one’s parents for wrongful life
“Does a child who is SS have the locus standi to institute an action against his parents for willfully producing him knowing fully that the product of the marriage is likely going to be SS?”
The above question was asked on a particular group. Below was my response.
“Before we delve into issue of locus standi, is there cause of action in this scenario? Is such action (suing parents for willfully producing a child with SS genotype) recognized under Nigerian Law? What is the name of such action? Or put it another way, what wrong has the parents committed? In my view answering the above questions can help in finding solution to the main question.
Perhaps my research was faulty, but what my research found closer to this scenario is the tort of “wrongful life” and the provisions of the Child Right’s Act.
Wrongful life is a tort (civil wrong) that entails a legal action by a child or someone on his behalf against the defendant for bringing the child to birth where the defendant knew or ought to have known that the child would be born into a life of painful and debilitating disease. In general, wrongful life suits are usually pursued if a child suffers from serious ailments and conditions. The feature of wrongful life action is that the plaintiff is claiming that he would have been better off if he had never been born.
In an action for wrongful life, the person to sue is either the child himself or his parents on his behalf and the person to be sued is a medical practitioner. In other words, the medical practitioner who counsels the parents prior to or after the conception (but before birth) is the one to be liable for wrongful life. The law is meant to put medical practitioners on guard on the need to be meticulous on their duties. The law expects medical practitioners to inform parents of the consequences of given birth to the child.
CAN CHILD RIGHT’S ACT BE HELPFUL IN THE CIRCUMSTANCE?
Section 17(1) of the Child Right’s Act, 2004 provides as follows:
“A child may bring an action for damages against a person for harm or injury caused to the child willfully, recklessly, negligently or through neglect before, during or after the birth of that child.”
In my view, if the above provision of the Child Right’s Act is to be given a literal interpretation, the section can be of help. Giving birth to a child with the full knowledge that the child will have SS genotype amounts to willfully causing harm to the child.
In view of the foregoing, if the child is to sue his parents for wrongful life, he lacks the locus standi to sue or it is safer to say he is suing a wrong party. But if he sues under section 17(1) of the Child Rights Act, he has the requisite locus standi.
Without prejudice to the foregoing submission, I think bringing action against parents in respect of sickle cell by a child may not succeed on public policy ground. Allowing such action to succeed shall open a floodgate of litigation.
Secondly courts have in number of cases refused to grant relief on wrongful life claim because law and civilization in general have placed a high value on the presence of human life, not on the absence.
What are your thoughts, however? Kindly share in the comment section below.
Student, Faculty of Law, Ahmadu Bello University, Zaria.
Content Provider, Legal Pages.