The Use and Influence of Comparative Law in ‘ Wrongful Life ’ Cases

1.1. Comparable stories of great grief In 1993, a South African boy named Brian Stewart was born severely handicapped. He suffers from ‘spina bifida’, a congenital defect to the lower spine, which negatively affects the nerve supply to the lower limbs, bladder and bowel. He suffers from a brain defect as well.1 In 1994, a Dutch girl named Kelly Molenaar was also born severely handicapped. By the time she was two-and-half-years old she was diagnosed as being retarded, autistic, not fully grown, not able to walk or talk, suffering from heart disease, bad hearing and poor eyesight and she was not able, at that time, to recognize her parents. She had been admitted to hospital on nine occasions due to continuous crying, believed to be caused by pain.2 Comparable stories about severely handicapped children can be found in several other countries as well. Both Brian and Kelly were not supposed to have been born in the sense that their mothers would have chosen for an abortion had they known in time about the birth defects their children would suffer. Brian’s mother would have undergone a termination of her pregnancy had the obstetrician and gynaecologist she consulted detected any abnormalities in the foetus and advised her thereof. Kelly’s mother had asked the obstetrician she consulted to carry out some tests regarding possible hereditary diseases and genetic defects, because she had decided to terminate the pregnancy if the tests on the foetus would show severe disabilities. She did so because there was a history of chromosome defects in her husband’s family and she herself had already suffered two miscarriages previously.


Comparable stories of great grief
In 1993, a South African boy named Brian Stewart was born severely handicapped.He suffers from 'spina bifida' , a congenital defect to the lower spine, which negatively affects the nerve supply to the lower limbs, bladder and bowel.He suffers from a brain defect as well. 1 In 1994, a Dutch girl named Kelly Molenaar was also born severely handicapped.By the time she was two-and-half-years old she was diagnosed as being retarded, autistic, not fully grown, not able to walk or talk, suffering from heart disease, bad hearing and poor eyesight and she was not able, at that time, to recognize her parents.She had been admitted to hospital on nine occasions due to continuous crying, believed to be caused by pain. 2 Comparable stories about severely handicapped children can be found in several other countries as well.
Both Brian and Kelly were not supposed to have been born in the sense that their mothers would have chosen for an abortion had they known in time about the birth defects their children would suffer.Brian's mother would have undergone a termination of her pregnancy had the obstetrician and gynaecologist she consulted detected any abnormalities in the foetus and advised her thereof.Kelly's mother had asked the obstetrician she consulted to carry out some tests regarding possible hereditary diseases and genetic defects, because she had decided to terminate the pregnancy if the tests on the foetus would show severe disabilities.She did so because there was a history of chromosome defects in her husband's family and she herself had already suffered two miscarriages previously.

The topic at hand: wrongful life in a comparative fashion
The facts described above of course point to two cases on the issue of 'wrongful life' , a highly debated topic within the field of both medical law and tort law (or the law of 'delict' as it is called elsewhere). 3 This is the theme of this paper and it is so, firstly, for that very reason: it is highly debated all over the world; it leads to differences of opinion and differences in the outcomes (in South Africa the Supreme Court of Appeal handed down a decision on this matter in 2008, not recognizing this sort of claim,4 while, for instance, the Dutch legal system is one of the few legal systems that does allow such a claim, see below); it challenges our academic thinking, our legal notions, our moral standing and our beliefs, in either the ethical or religious sense of the term.This, in turn, raises the question as to what is so different between these (and other) legal systems.Why are the views around the world so diverse on this theme, while private law matters are usually dealt with in a rather comparable manner?Related to those difficult substantive questions, 5 we are faced with -because we naturally and wisely tend to compare legal systems in hard cases such as these -issues of comparative law methodology and the use of (the outcomes of) that methodology when shaping the law, either through legislators, but certainly also through the (highest) courts.For instance, what has comparative law to offer in this respect?Will it bring us closer together?Can it do so?In what sense and on what level (as to outcomes; on the level of the decisive arguments)?These are the sort of questions that lie at the heart of the Utrecht-Cambridge-Bologna project, funded by the Hague Institute for the Internationalisation of Law (HiiL, The Hague) on 'The Changing Role of Highest Courts in an Internationalising World' .And these methodological questions form the central part of this contribution.

Research hypothesis
To be more precise, in this paper I will investigate what (amount of) comparative information and arguments were used and what influence, if any and if detectable, they had in different jurisdictions as regards the topic of wrongful life.This topic is especially interesting to use as an example with a view to learning about the argumentative force of comparative law, because it concerns -as stated above -a topic that has led to much controversy around the world and to rather diverging views, while at the same time it is a topic that has been studied extensively, also from a comparative perspective.This makes it a perfect theme for the purposes of finding out what role comparative law does in fact play or can play in sensitive cases such as these.
As stated, in deciding and analyzing wrongful life cases, comparative law is used rather extensively.What is less clear, though, is what weight is then attached to those arguments by courts when deciding a case in a given national system.The underlying hypothesis for this paper is that it might not be so much the outcomes and arguments found elsewhere through comparative law that are decisive (at least in cases such as those concerning wrongful life), but that instead it is something else (in my opinion most notably the cultural background and/or the legal policy reasons within a certain tort law/medical liability law system) that decides the issue, irrespective of how the comparative law arguments sound. 6This hypothesis would be strengthened if the comparative materials and arguments found can and are used 'in both directions' in the sense of supporting either the recognition or denial of a claim of this type.In other words, is it not the case that a national court will choose those comparative arguments that fit well with the solution aimed for based on other grounds?

Testing the hypothesis
In this paper this hypothesis is tested by carrying out a comparative survey of wrongful life cases decided in several jurisdictions (see Section 4).Some other jurisdictions are mentioned briefly if and when the information can be attained in a language that is accessible to me (in Section 2).I also include a short discussion on the Draft Common Frame of Reference and the Principles of European Tort Law in the analysis because they might shed some light on what is considered to be common ground in this respect (if there is any).
In Section 4 the leading cases from several jurisdictions will be examined as to the use of comparative law.Is the comparative law method used?At what level, where and how?Was the comparative argument decisive or not?Can we tell how the judges obtained the comparative information?Are they using their networks, consisting of other judges from across the globe?The final aim would be, of course, to contribute with these wrongful life cases -as merely one case study -to the development of a more conceptual scheme on the argumentative function of comparative law methodology.

The further set-up of this paper
Hereafter, I will first make a few remarks on terminology (Section 1.6) and then lay bare (some of) the legal and moral issues involved (Section 1.7).Thereafter I will show how some of the legal systems in the world deal with the issue of wrongful life in terms of outcomes (Section 2) and then continue to deal with some of the important legal and moral problems raised in wrongful life cases, as well as the possible answers given in response (Section 3).Having thus sketched not only the outcomes reached in several jurisdictions but also (some of) the main lines of reasoning used by the courts, Section 4 deals with the principal question of this paper, i.e. to what extent are the outcomes actually based on or influenced by comparative law insights?I will defend the position (Sections 5 and 6) that the use of comparative law is of influence to some extent -in some systems more than in others, while this influence is often not very explicit -and is certainly very useful and intellectually challenging.But I will also conclude that comparative law is not capable of providing a definite answer to the question of which arguments are the most valid, most convincing and decisive, at least not in tort law issues of the magnitude of wrongful life claims.It is instead the weight which a certain argument receives in a certain cultural setting or background, in a certain environment drenched in ages of promoting specific legal policies that seems to decide the matter.Hence, it is what I call the politics of a tort law system that governs the outcomes and the solutions reached in these sorts of cases.This, of course, can be traced back to a wider characteristic of the law of torts, its political nature. 7efore I embark on a brief tour around the world, let us focus, first, on what wrongful life claims are actually all about, both as regards terminology and the key questions that arise.

Terminology 8
The topic of this paper encompasses a cause of action for damages against medical practitioners. 9A wrongful life claim is a claim by a child, and this will always be a disabled child, issued by its representatives, i.e. most notably the parents, against a doctor or obstetrician for having to live a life full of suffering because of a handicap while the child was not supposed to have been born at all but was born anyway because of a negligent act by the doctor or an assistant.If one fails to order or correctly perform prenatal tests as to the state of health of the foetus, if for instance a chromosome test is not carried out properly (a case of wrongful genetic counselling), a handicapped child might be born where otherwise, had the testing been done correctly, the pregnancy would have been terminated by the parents.Had the testing been performed correctly, they would have known the child would be born severely disabled and then they would have chosen an abortion to end the pregnancy.10Due to the doctor's fault, however, they never got round to making or being able to make that decision.Damages in these cases consist of the cost of living for the child (which, arguably, seem to be purely economic in nature11 ), i.e. the cost of rearing the child for the person taking that task upon himself, including the extra costs related to the disability, and possibly also non-pecuniary loss for the child. 12his type of action needs to be separated from a so-called wrongful birth claim.This involves a claim for damages by the parents of a child for, basically, the costs of bringing up the child and for having to go through a pregnancy and giving birth (a head of damages for the mother only, of course).The claim is filed because the parents did not want any (more) children, for whatever reason, or did not want the child in question to be born (because of a genetic disability detected during pregnancy), but (again) became parents anyway because of the fault of a third person, i.e. the doctor, by not preventing the conception from occurring (a.k.a.wrongful conception: failing to implant a contraceptive device in the right manner, not warning about the risks of becoming pregnant anyway, etc.), by not terminating the pregnancy correctly after it has come about (a failed abortion) or by not correctly performing the necessary genetic tests.An example is of course the situation in which a birth control operation is performed on either him or her but that turned out to be unsuccessful because of an unlawful act by the doctor.In these cases the child being born can thus either be a healthy or a disabled child.This, in principle, is of no consequence to the possibilities of a wrongful birth action13 as such although in some legal systems this fact is considered to be relevant.The most important heads of damages are the cost of raising the child (which is considered to be purely economic loss 14 ) and non-pecuniary losses (in principle for both the mother and the father for interference with family life).

The key questions in wrongful life cases
The key questions15 when dealing with the issues at hand are legal or moral in nature.'Legal' in the sense that (both wrongful birth and) wrongful life claims seem to cut right through the legal categories within our system that we usually work from.They are about contract law and/or tort law (Can both apply?), 16 about wrongfulness and fault (Is there a duty?Is it breached?),about damages (What is the damage here?How does one asses it?Can one do that at all?), about factual causation (Who caused the damage if there is a natural handicap for the foetus such as a chromosome failure?) and about public policy.
The moral questions that arise do so because these claims touch upon the way we think about life in general, about newborn life specifically, about the possibilities of modern medicine but also upon religious or ethical aspects (Is all life sacred, no matter what?).More specifically for the issue of wrongful birth the major moral issue is: can a child ever be considered a source of damage (and not a blessing)? 17nd for wrongful life claims, the question becomes twofold.First, can a disabled child after its birth sue the mother and claim that the mother should have had an abortion?Second, is handicapped life of less value?18And if it is not, which is of course the only sensible answer, is that not still the message that these claims are sending out to the world?Or, as Snyder, J. stated in Stewart v Botha: 19 ' At the core of cases of the kind that is now before us is a different and deeply existential question: was it preferable -from the perspective of the child -not to have been born at all?If the claim of the child is to succeed it will require a court to evaluate the existence of the child against his or her non-existence and find that the latter was preferable.'

The state of the law: outcomes of cases from across the globe on wrongful life
Now that we have the issues out in the open, what is the current state of the law in this regard?How are wrongful life claims resolved?I will consider this issue briefly here, by means of an overview of outcomes only, but I will come back to the arguments used later. 20n the Netherlands a wrongful life case has been upheld.This was decided in 2005 by the Supreme Court (Hoge Raad) in the Kelly case.The court granted her the cost of living (i.e.her upbringing), as well as the extra costs related to her handicaps and non-pecuniary losses for her suffering. 21The Dutch legislator has not subsequently intervened, not even when asked specifically to think about doing so, basically stating that this Supreme Court decision seemed to have been handed down in accordance with the rules of private law in the Netherlands and that there was no apparent reason for the legislator to decide otherwise on this issue. 22he German legal system denied the possibility of issuing a wrongful life claim in a Bundesgerichtshof case of a foetus being exposed to the rubella disease contracted by the mother: there is no direct duty to prevent the birth of a foreseeable handicapped child because human life might appear valueless if one was to accept such a duty. 23n English law Section 1 of the Congenital Disabilities (Civil Liability) Act 1976 does allow a prenatal harm claim for a child if it is born alive and disabled if the defendant was liable towards either parent for the act which led to the disability. 24This wording however excludes cases of naturally resulting handicaps, such as a genetic defect not having been detected because it was not properly tested for.So, here the legislator stepped in rather early to prohibit (future) wrongful life claims. 25The courts agree with this position.In McKay v Essex Area Health Authority, again a case of undetected rubella, the wrongful life claim was rejected on public policy grounds: there is no duty to abort a disabled child, accepting that it would be contrary to the dignity of the child.
would be a violation of the sanctity of human life, and the assessment of damages (comparing the situation of a disabled child with that of a 'not born foetus') is impossible. 26he Cour de cassation made room for a wrongful life claim under French law for the costs of the handicap in the famous Perruche case.Nicolas Perruche was born severely handicapped because his mother had contracted rubella thinking, because her physician had told her so, that she had been immunized against it. 27Thereafter the French legislator intervened by deciding that nobody can be indemnified for his birth, even if handicapped.This so-called 'Loi Anti Perruche' from 2002 thus overruled the Cour de cassation. 28The same Act also set up a fund to compensate parents of handicapped children, but that fund has not had a good start.More than a year after its creation no money had yet been put into the fund. 29oreover, the European Court of Human Rights has considered this French Act to constitute a deprivation of property under Article 1 First Protocol to the European Convention on Human Rights (protection of property/ownership) because the Act has retroactively taken away the possibility of issuing civil liability claims which are considered to be property issues. 30This, in turn, has inspired the Cour de cassation to still allow wrongful life claims based on facts that occurred prior to the entry into force of the Act. 31 legislative rule similar to the French one was proposed in Belgium in January 2002 but that legislative intervention32 never became law; a new Act dealing with the reimbursement of damages as a result of health care, envisaged through the creation of a special fund, did become law on 31 March 2010,33 but that Act does not regulate wrongful life claims.Meanwhile, the first instance court of Brussels has twice allowed a wrongful life claim under Belgian general tort law, quoting the French Perruche case,34 and the Brussels' Court of Appeal has recently allowed a claim as well (without referring to comparative materials, however).35 The defendant hospital has lodged an appeal at the Belgian Supreme Court but that appeal is still to be heard.Of course, this means that the position of the Belgian law in this regard is actually not entirely clear.
The French legislator's decision is in line with what has basically been decided across continental Europe,36 as we have seen, with Greece, 37 Italy, 38 Austria, 39 Poland 40 and Portugal 41 being mentioned as other countries rejecting the claim.However, both Israel 42 and the Netherlands (as mentioned above) are exceptions to this line of thought.The Spanish Supreme Court did allow an action in 2006 43 but has retreated from that position (or: the runaway decision, as Ruda calls it) later on. 44Although one could thus of course still speak of a vast European majority declining this cause of action, this is not a position which has been reached unanimously or without changes along the way.
The fact that some systems have been 'swinging' back and forth (France, Spain) is highlighted by the acceptance of wrongful life cases in earlier days in Hungary, 45 but by now that legal system has changed its position once again, through a unifying resolution issued by its Supreme Court; now it is firmly established that wrongful life claims cannot be accepted under Hungarian law. 46anadian 47 and (most) American 48 courts have however turned down this cause of action.In the US, the states of California, New Jersey and Washington are the exceptions. 49In Australia 50 the case of Harriton v Stephens was (again) about a doctor who had failed to diagnose the mother's rubella infection during pregnancy and who had failed to warn the mother of the risk of serious disability as a conse-quence of that infection.The High Court of Australia decided by majority that the wrongful life claim should be denied.The same fate befell a claim lodged in Singapore51 and a claim filed in Korea. 52n Friedman v Glicksman, Goldblatt, J. at the Witwatersrand Local Division upheld a wrongful birth claim under South African law, in line with the state of the law mentioned earlier, but he denied the admissibility of the wrongful life claim initiated by the mother in that case on behalf of her child. 53The same solution, a denial of the wrongful life claim on public policy grounds, was handed down by the Supreme Court of Appeal in Stewart v Botha. 54he 'Principles of European Tort Law' as developed by the 'Spier/Koziol Group' are silent on both these issues; no 'Principle' has been designed for either wrongful birth or life cases.But, because a claim for the reimbursement of the cost of rearing a child is a claim for pure economic loss damages, in principle what applies to purely economic loss in general would also apply to the wrongful birth and life claims, and thus (at least to some limited extent) compensation would then be possible along those lines.
The 'Draft Common Frame of Reference' introduced by the 'Study Group on a European Civil Code' and the ' Acquis Group' is equally silent on both the wrongful life and wrongful birth issues.There are no specific provisions on this.Again, the pure economic loss part of a wrongful birth and life claim might be compensated, however, according to the rules that have been developed for such cases. 55Of course this relative silence might reinforce the working hypothesis that comparative law arguments do not provide (solid and universally acclaimed) answers to legal questions in hard cases.56

Introduction
Now that we have been given a survey of where the law stands in several parts of the globe, and more importantly in order to be able to ascertain properly what sort of influence comparative law reasoning might have had in the jurisdictions under review, it seems wise to delve somewhat deeper into the heart of the substantive matter and to find some arguments and answers, albeit only tentatively, to the key questions raised above. 57 will first (Section 3.2) deal with the legal questions surrounding wrongful life cases.I will sketch these briefly, together with (some of) the possible answers thereto.In doing so, attention is given especially to the way the Dutch Supreme Court handled these issues in its Kelly decision. 58I have chosen this case as a starting point because it is the one case I know best and because it actually accepts the cause of action.In the following section (3.3)I will sketch my own reasoning to some of the moral issues raised.

The most pivotal legal questions and arguments used
For wrongful life actions, one of the biggest reasons for controversy 59 is raised by the question of what is actually the cause of the suffering and disabilities of the child in question.At first glance, the answer is obvious: the genetic defect, the 'flaw' in the development of the child due to a bad chromosome is the cause.Of course that is true, no doubt about that, but at the same time Brian's or Kelly's suffering has also been caused by the doctor's or obstetrician's fault.Without that fault being made, the genetic information sought would have been acquired and that information would then have led, so we assume for present purposes, but this has to be proven as well, 60 to the mother having an abortion instead of giving birth to the child.In that event, there would not have been a child to feed and clothe and thus there would have been no cost of maintenance.The conditio sine qua non test as regards factual causation (causation by way of non-feasance) is then fulfilled by the doctor's fault as well. 61nother major topic of discussion is the issue of damages.Can we say there is any damage in a wrongful life case, and if so, how can we assess that?Is the usual method of comparison to assess damages workable?What should then be compared with what?The 'non-existence' or 'not being' of a child cannot be materialized in monetary terms, so no true comparison of 'non-existence' , on the one hand, and 'life with certain disabilities' , on the other, is possible. 62However, according to the Dutch Supreme Court this reasoning is flawed. 63One can indeed and must compare the cost of raising the child at this point in time, given the fact that the child has been born as it is, with the hypothetical situation that would have ensued if no fault had been committed.That would of course have been a situation in which these costs would not have been made.So a comparison is possible here. 64If need be, the exact amount of damages can be determined by taking an 'educated guess' , which of course happens more often and is usually allowed (see for instance Article 6:97 Dutch Civil Code for the Netherlands). 65Thus, this 'technical-judicial reason' is not accepted. 66 further pivotal issue concerns the question whether allowing wrongful life claims would entail that claims of children born disabled issued against their mother would also become possible.Instead of suing the doctor for being born the child would then sue its mother for not having an abortion, if she decided not to undergo one while being aware of the genetic defect before giving birth.As elsewhere, this argument has been forcefully rejected by the Dutch Supreme Court. 67The court stated, basically, that abortion is a right for the mother if certain requirements posed by law are fulfilled, but it is not an obligation for her and thus it cannot be a 'right' for the child on which a claim can be grounded.So, the 'omission' to abort will never amount to negligence because there is no duty towards the child to positively act in that way.Snyders, J. reasoned along the same lines in Stewart v Botha. 68he following argument is also raised in the discussion.Obstetricians, doctors and hospitals owe a duty of care towards the foetus, and not only the mother (and father) if one is to accept a wrongful life claim. 69This is then the duty to carry out prenatal tests if needed according to medical opinion and to do so correctly according to medical standards.That duty is of course breached if such tests are not carried out (properly) while they should have been carried out (better).
The concern then becomes whether this will this lead to a form of defensive medicine, in this case: carrying out too many tests just to be sure and of advising abortions on too many occasions for the same reason.The difficulty with this argument is that these kinds of fears are never actually empirically proven or refuted so it is difficult to pass judgment thereon.I do not attach too much weight to it, because for any form of liability at least a fault of some sort (or another justification for strict liability) is needed.That requirement means that as long as people act and behave as reasonable persons, there is nothing to fear in this respect because there will be no liability. 70 somewhat less important but still interesting issue is whether a wrongful life claim is still needed next to a wrongful birth claim of the parents being accepted (as it is in most jurisdictions).The issue was raised in the Dutch Kelly case and the court reasoned that the child does indeed need an independent claim because otherwise it becomes too dependent on the parents (who might not always be around, who might become insolvent or who have no legal duty to care for the child after its 21 st birthday, which means that they would no longer have a claim for costs after their child reaches that age). 71elated to this is another question: can one accept wrongful birth claims without also accepting wrongful life claims as well?Of course this has indeed happened, so the easy answer is 'Yes, apparently' .But taking a closer look one can truly ask: if you give the parents a claim in case of a handicapped child being born how can you then not give the child itself also a claim?Is it not in fact the child that in the end suffers most?Would it then not be strange to grant the parents a claim while not accepting a claim by the child?The same argument is basically put forward by Louw, J. in his first instance decision in Stewart v Botha.He asks, principally: how can it be that the sanctity of life argument does not preclude a wrongful birth claim but would preclude a wrongful life claim? 72Of course, by posing the question in such a manner, we are already entering the realm of morality.

Two moral issues
Of course, I will not be able to solve, once and for all, the moral questions raised before, if only because 'my moral judgment' is not the same as that of someone else.Be that as it may, the most important moral issue in wrongful life cases -i.e. is handicapped life of less value?-can be answered as far as I am concerned by saying: of course not, and the fact that damages are awarded does not imply this either.Why not?Because what allowing a claim for the child will do is to give Brian and Kelly a (better) chance of building a life for themselves which is as good as possible, given the condition they have been born with.
Allowing a claim will help these disabled children to grow up as comfortably as possible because certain needs can be fulfilled. 73he other moral issue raised before, i.e. that an abortion might become a duty for the mother, has been turned down so many times (and again by the Dutch Supreme Court, see above) that I would not consider this to be a real issue any longer.What is important, though, is that this goes to show that even moral issues like this can be resolved in a like manner across the world (even though the issue as such is not dealt with similarly everywhere74 ).

Introduction
The key question for this paper is of course to what extent the answers given and the outcomes reached in the different legal systems are based on truly comparative reasoning and comparative arguments.Hereafter, I will analyze more closely -mainly by way of trying to trace the relevant source for a specific argument -the most important cases75 handed down in several of the jurisdictions mentioned above.In doing so I will focus (a) on the actual arguments used in those cases for either allowing or rejecting a claim, as well as (b) on the source(s) underlying these arguments.
The main question in that respect will be: was the particular court under scrutiny influenced in any discernable way by information drawn from comparative law?

The Netherlands
The Dutch Supreme Court did not of itself use any comparative source when deciding on and reasoning the Kelly case. 76This, as such, was not a great surprise since the court never cites doctrinal works (only previous case law and legislative history) and hardly ever uses explicit references to what comparative insights bring to the floor,77 except when the Court has to adjudicate on a matter of unified private law such as the provision of the CMR Treaty. 78omparative influences are thus, at least in the majority of (non-unified private law) cases, received implicitly, at most, and the way this works is that the court will take notice of and thus possibly be influenced by the preliminary conclusion (an advice) written for the court, in each case it decides, by the 'procureur-generaal' (P-G) or one of his subsidiaries (an 'advocaat-generaal' , A-G).These conclusions can contain comparative remarks, sources, arguments, etc., and usually do contain such information if it con-cerns a novel and important topic. 79That the Supreme Court, or at least its private law division, is in fact influenced by these conclusions has been admitted by the court itself. 80The court has also admitted to sometimes carrying out its own supplementary research into foreign sources, assisted by the law clerks. 81n his advice concerning the wrongful life case, P-G Hartkamp supplied a thorough comparative report on the matter to the court, 82 dealing with German law, English law, French law, as well as, less extensively, Belgian, Israeli and US law.The court took this information into account -no doubt, considering what was said above -when deciding the matter.What argument, if any, or what rebuttal of whichever counter-argument was in the end decisive for the court, cannot be ascertained, however, because it is not made explicit.The court itself, as stated, did not compare or use any foreign legal systems and the deciding judges may not speak about their non-public deliberations in chambers when taking the decision.
One feature remains in this respect.The main argument, in my view, 83 for the Dutch court in allowing the claim was that in the court's view a handicapped life is of no less value than a 'regular' life; even with a handicap a dignified and happy life is possible.Thus, non-existence is not better than a handicapped existence but that does not diminish the fact that a handicapped life is difficult for people to bear.An award in damages can help in this respect and support and improve one's life and living conditions.Since this reasoning was rather novel and not yet widely followed, it would of course have been hard to use comparative insights.

South Africa
In the South African wrongful life decision in Stewart v Botha 84 Snyders, J., used comparative materials.References can be found to the Dutch Kelly case, and to England and Wales, Canada, Australia, Israel, France, Germany (only in a footnote, however) and the US (paras.12-14).The main argument against allowing a claim stems from what is positioned from the outset by Snyders, speaking for the unanimous court, as the 'deeply existential question' that is 'at the core' of these cases, i.e. whether it was preferable for the child not to have been born at all (see para.11).This same point is raised again in no.16, at the starting point of the judge's enquiry after having stated the law elsewhere, in a quotation from an American case (Speck v Finegold 85 ).Then this starting point is tied to the well known argument that damages cannot be assessed unless, according to Snyders, it is first decided that non-existence is preferable over life.After considering some of the other arguments usually raised, Snyders again returns to the same point in para.28 when concluding the decision.What was the decisive argument here is thus rather obvious and support for building the argument was found in the US (but could certainly have been found elsewhere as well).But that is not the end of what we can learn from this case.
As to the influence comparative law can have -or rather: sometimes will not be allowed to have -it is also very interesting to read what Snyders, J., said towards the end of her judgment: 86 'In those jurisdictions where these claims have been allowed the debate has not been resolved, but an answer has simply been favoured on selected policy considerations without striking a balance that takes all the relevant norms and demands of justice into account and without resolving the impossible comparison between life with disabilities and non-existence.(…) Making that choice in favour of non-existence not only involves a disregard for the sanctity of 'I have pointed out that from whatever perspective one views the matter the essential question that a court will be called upon to answer (…) is whether the particular child should have been born at all.That is a question that goes so deeply to the heart of what it is to be human that it should not even be asked of the law.' 92 What is undoubtedly clear from this quotation is that the validity and strength of the legal arguments used in the debate is no longer a real issue.They have been brushed out of the political arena.Instead, an appeal is made to notions of morality.

Australia
The High Court of Australia decided by majority that a wrongful life claim should be denied by holding, amongst other reasons, in Harriton v Stephens: ' A duty of care cannot be clearly stated in circumstances where the appellant can never prove (and the trier of fact can never apprehend) the actual damage claimed, the essential ingredient in the tort of negligence.' 93 The majority relied (in part) on, or at least used or mentioned precedents from England and Wales, the US, Canada, Israel, Germany, France and the Netherlands.
In the reasoning of Crennan, J., for the 6 to 1 majority, specific mention is made of England and California with respect to the argument that allowing a claim would or might lead to the risk of a parent being sued for not having an abortion.This argument is, however, presented as a 'further consideration' and thus does not seem to have been of vital importance. 94Further explicit references to foreign sources are almost entirely lacking in the judgment, 95 except for when it comes to the issue of assessing damages which is troubled by the fact that the necessary comparison between life with a handicap and not living at all cannot be made.The Israeli solution is here brushed off the table, while the American solution to set the issue aside on grounds of policy in fact admits, in Crennan's view, her point that a comparison is not possible.Kirby, J. has supplied the legal world with a very forceful dissenting opinion in Harriton v Stephens in which he concluded: 96 'Denying the existence of wrongful life actions erects an immunity around health care providers whose negligence results in a child who would not otherwise have existed, being born into a life of suffering.Here, that suffering is profound, substantial and apparently lifelong.The immunity would be accorded regardless of the gravity of the acts and omissions of negligence that could be proved.The law should not approve a course which would afford such an immunity and which would offer no legal deterrent to professional carelessness or even professional irresponsibility.' In reaching that decision he (also) made use of authorities from the England and Wales, Canada, Singapore and the US.
92 See Snyders, J. in Stewart v Botha, supra note 1, at para.28.I wholeheartedly disagree with this statement.Snyders denies, in my view, the very essence of the law.Law, and tort law in particular, is about people, their choices, human conduct and about regulating that human conduct.This is by no means different if that involves solving difficult problems.Denying an answer because the law should not deal with certain questions equals a denial of doing justice once the question as such has been raised.From the moment a certain issue, however difficult it may be, has been brought up, the law must step up to the plate and do what it does best, i.e. decide highly controversial societal issues through the courts.It must do so without exception and therefore also in wrongful life claims in order to keep the members of society from deciding the issue themselves by taking the law into their own hands.Furthermore, deciding, as Snyders did in the Stewart case, not to decide on a certain topic and not to regulate a certain issue (by denying a claim) is also a form of regulation because without any recognition of the claim, there is no claim in law and thus no right to damages for the damaged party.Not impairing individual freedom might have then been the regulators' goal in such an instance.93 See the leading opinion by Crennan, J., in Harriton v Stephens, supra note 42, at para.276.94 See Crennan in Harriton v Stephens, supra note 42, at para.250.95 If we neglect the references to Aristotelian notions of corrective and distributive justice.Aristotle is of course a 'world citizen' in every sense.96 See Kirby, J. in Harriton v Stephens, supra note 42, at para.153.
The first thing to notice then is that some legal systems are mentioned by both opponents, while the judges opposing the action do mention countries that would allow the claim, while the judge opposing the majority ruling cites cases that would deny the claim (and not mentioned by his adversary).Secondly, it is interesting to see that Crennan, J. uses some of the pro wrongful life cases to illustrate the point that the assessment of damages is impossible in these cases and that if this is neglected by a court and a claim is accepted anyhow, such a decision rests on policy reasons. 97Why that would be such an awful thing to do, and thus an argument against the action, is an entirely different matter, but one that is not further explained.On the contrary, this is presented as self-explicatory.I fail to see the apparently obvious here, but that may be my apparently mistaken belief that tort law is indeed also about policy issues.

United States of America
The US legal system of course consists of a multiple of private law systems on the State and Federal levels.Therefore, not all cases from all the different states accepting or denying the wrongful life claim can be dealt with here; instead, I decided to analyze only six rather important cases (see below), cases in which the claim was (by means of an exception) accepted and cases that are acknowledged as important precedents when denying the cause of action.In general one can safely say that in the US claims for wrongful life are denied by the courts and/or state legislators.This is the case in a vast majority of states, although state courts change their opinions once in a while. 98n what is probably the most famous wrongful life case in the US, Gleitman v Cosgrove,99 the Supreme Court of New Jersey turned down the cause of action, resulting in a denial of a wrongful life claim.In that 1967 case, there is one interesting reference, namely to an article in the Israel Law Review,100 but only for a quote that reaffirms what the court had already stated.No further comparative inspiration is found in that case, which is not surprising, of course, since it is a very early case.In its later (at least partial) reversal of this decision in Procanik v Cillo,101 the New Jersey Supreme Court, allowing the recovery of special damages, mentions several cases but only cases from other American jurisdictions. 102The same applies to the Pennsylvanian case of Speck v Finegold103 which only mentions, again, the same Israeli law journal article.
Exceptional damage awards for special damages through wrongful life claims are, next to New Jersey, also accepted in California and Washington.In the Californian cases of Curlender v Bio-Science Laboratories and Turpin v Sortini no mention is made of foreign law. 104The Washington case of Harbeson v Parke-Davis follows the Turpin case; it does not cite any foreign materials either.105

France
The French Cour de cassation only hands down decisions that are characterized by their lack of detailed explication for the outcome reached.The legal rule at issue is exposed, this is related to the facts mentioned and then the outcome is given, but nothing more.The Perruche case106 thus does not give us any clue as to any possible comparative influence; nor does the preliminary report (by Sargos).Since the French legal culture is still, in general, rather inward looking, it would be safe to assume that there has not been any real foreign influence on this case and the topic as such.

Germany
In Germany the position seems to be rather well settled.In its 1983 wrongful life case107 the Bundesgerichtshof (BGH) rather explicitly stated that foreign judgments could only be of limited relevance since these cases were based on different laws. 108Thereafter the court did mention however the non-acceptance of these claims in England and Wales and the US (or rather: California, which back then still denied claims), before turning to the opinions of legal writers.It seems clear to me that the German Supreme Court thus did in fact take notice of what was happening elsewhere but decided to follow its own course.

Austria
Somewhat surprising, maybe, after much of the foregoing, it turns out that the Austrian Supreme Court109 had no reluctance whatsoever in shedding light on its main source of inspiration when denying the wrongful life action.Less surprisingly it alluded to German case law, basically accepting the reasoning followed there.It stated in its judgment that the German case law mentioned above (Section 4.7) has denied claims of this kind with convincing arguments ('mit überzeugenden Argumenten') such as: the doctor did not cause the child's condition; there is no duty to prevent the birth of a disabled child; the doctor should not pass judgment on the value of human life; we cannot judge on whether life with serious disabilities represents harm in the legal sense as compared to an alternative.
Thereafter the Austrian court stated its (probably) main concern as follows: 'In Fällen, wie dem hier vorliegendem, sind die Grenzen erreicht, innerhalb derer eine rechtliche Anspruchsregelung möglich ist.Der Mensch hat grundsätzlich sein Leben so hinzunehmen, wie es von der Natur gestaltet ist, und er hat keinen Anspruch auf dessen Verhütung oder Vernichtung durch andere.' This statement is then immediately followed by the reasoning that advocates of wrongful life claims cannot argue anything really valid against the argument of the BGH -which is in every way convincing ('in jeder Weise überzeugenden Argumentation (…) nichts wirklich Stichhältiges entgegenzuhalten') -regarding the fact that allowing a claim against a doctor would also mean having to allow a claim by a child against its parents.Of course, that argument has been refuted elsewhere, but that is besides the point here, that point being that in Austrian law the influence of German law, and thus the comparative argument is apparently extensive on this point.It should be noted, however, that both countries are neighbours, share the same (legal) language and a large part of their history, and that the German legal system is a far bigger one (more courts, lawyers, doctrinal works, etc.) than its Austrian equivalent, making it rather obvious that it would at least take due note of the decision of its German counterpart.

England and Wales
When denying the possibility of a wrongful life claim under the law of England and Wales, basically based on the (legal) arguments dealt with above, Stephenson L.J. was happy to find support for his view 'in the strong current of American authority' , which: 110 ' Are of no more than persuasive authority but contain valuable material and with one exception would rule out the infant plaintiff 's claim in our case.' Hereafter, Stephenson dealt with the case of Gleitman v Cosgrove and mentioned several other American cases, including the Californian case of Curlender v Bio-Science Laboratories, which in fact allowed the claim, but which did not persuade him: he found no answer in that case to the reasoned objections to Notwithstanding the fact that usually several other legal systems are mentioned in or around the highest court cases dealing with wrongful life, as indicated in Table 1, the actual influence of these other systems on a decision by a court elsewhere is less easy to grasp or document.Merely pointing to countries reaching the same decision as in countries mentioned or cited is not enough, since the reason for reaching that decision can and might well be based on completely different grounds, which would mean that the comparative angle was of no influence at all, or at least not of decisive influence.In fact, if there would indeed have been a direct relationship between legal systems along the lines of 'all systems follow the other systems mentioned' , no legal system would have been given the freedom to accept claims (if only temporarily, as has also happened) after the first rejection. 113This is not what happened in fact (e.g. the Netherlands deviated), and thus there is no valid causal connection to be made across the board.
As an intermediate conclusion from the foregoing analysis one can safely assume that in more the half of the countries under review, comparing (outcomes of) wrongful life cases elsewhere does not provide an (explicit) important (i.e.decisive) reason or argument for choosing a certain solution (the Netherlands, France, the US, England and Wales, Germany, Australia), although exceptions to this rule of thumb do seem to exist, for instance in South Africa, (to a lesser extent) Belgium, and most notably Austria as well as Hungary.
To be sure, the former Hungarian solution of allowing a claim was an 'obvious deviation' from the trend elsewhere and this was a reason to change the law (see Section 2 above), according to Menyhard. 114e also informs us that the court was 'obviously influenced' by the majority practice elsewhere and had a 'clear intention' of harmonizing Hungary with (most of) the other European systems. 115But also the internal Hungarian court decisions needed to be harmonized.In reaction to this development, Oliphant 116 noted that the 'influence of comparative tort law here is clearly apparent' .Be that as it may, elsewhere this influence is to a large extent lacking when such decisions are being made.
The explanation for that phenomenon could be related to the fact that it has been mainly those small 117 (and thus less important and less influential) jurisdictions (Hungary, the Netherlands, Israel) with unfamiliar and thus inaccessible languages that have accepted at one point in time the wrongful life action. 118However, Spanish is for large parts of the world a very accessible language, but in Spain a wrongful life claim was only accepted in one case, and denied soon thereafter (see above).On the other hand, the few American states that accepted wrongful life of course could have easily performed the function of spreading that solution across the globe.Thus, the explanation can only be found elsewhere and not in a possible lack of global impact of cases accepting claims. 119

Comparative law does not decide cases
As can be imagined, I have my own view on some of the arguments raised in the worldwide discussion on the issue of wrongful life.Others, however, will value those arguments differently.If someone, for example, attaches a fairly great amount of weight to the right to self-determination, a sanctioning mechanism provided by tort law in the form of an award in damages is needed. 120If someone does not, this would be much less necessary.The question thus raised is of course how we then get to a final say on what is 'right' or 'wrong' here.If the arguments used around the globe are basically the same and if most, if not all legal systems use, in some way or another, comparative law materials and then still the final outcomes chosen are not the same, what does that tell us on a more general level about the use of comparative law?
This outcome would suggest that comparative law is -and this would indeed be my view, at least in relation to wrongful life claims -in most cases (or better: legal systems) not able to provide the answer to the question of which arguments are valid and (most) convincing, and thus comparative law is neither able to answer, once and for all and for people everywhere, the question whether wrongful life claims should be allowed or not. 121That, of course, is not a surprising conclusion.It has to do with the fact that although the arguments for and against all possible solutions are as such the same everywhere, it is the legal culture in a certain place and at a certain time that determines in the end how a legal system interprets, weighs, rates and values those arguments and thus decides the debate on the topic at hand (see Section 4.3 below). 122Comparative law can at most provide arguments which are as yet unknown (which is of course of great value in itself), but not by and in itself decide a case.In our case, for example, if the decision maker in a certain legal system, be it a court or legislator, values the right to self-determination less highly than a decision maker elsewhere, there is room for another solution than the one reached elsewhere.And in general, depending on the solution finally reached, comparative law can provide the decision maker with legal solutions and arguments used elsewhere, either for or against, to subsequently reason and legitimize the decision as reached on other grounds. 123y basic and simple point is thus that legal culture -or more neutral maybe -the legal politics within a (tort) law system decides how the answer to the moral questions involved will sound.Comparative law can provide the basic arguments for and against certain solutions (and thus the basis for justifying the solution reached) and it is extremely useful at that, 124 but it can do no more.The final decision is always one of a 'political' nature. 125Or, in other words, the use of comparative law in reaching decisions is in most systems something of a monologue (stating what is out there) and not a genuine dialogue (discussing solutions reached elsewhere).In essence, all this is of course a lesson that has been taught before, 126 but I think it is still an important lesson to (re)learn.A legal system cannot sinply copy comparative notions and rules even if the arguments seem sound; if it does, mistakes will be made. 127This is in accordance with the conventional wisdom that comparative law is not a method for interpreting national legal texts (but a source of inspiration when explaining the law as it is or ought to be). 128