Hammer v. Amit
[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]
This opinion is a result of cases joined together in order for the Court to resolve the general questions regarding the cause of action known as “wrongful birth”. This issue arises when a person born with a congenital disability claims that careful conduct by petitions – usually medical professionals who treated the pregnant mother – would have entirely prevented that person’s birth. Two distinct causes of action might be triggered by the negligent conduct: a claim by the parents and the claim by the child. These claims were recognized 25 years ago in the Supreme Court’s decision in CA 518/82 Zeitzov v. Katz (“Zeitzov decision”). The child’s claim is termed “wrongful life”, and thus is distinguished from the parent’s claim, termed “wrongful birth”. All five justices who sat on the Zeitzov panel found that there is no bar to recognizing the parents’ claim – the “wrongful birth” claim – as a subset of the tort of negligence and according to the general principles of tort law. The dispute, even back then, revolved around the issue of recognizing a claim by the child. In a majority ruling, the Court recognized the child’s claim of “wrongful life”. Still, the four justices of the majority were split on the reasons for recognizing the “wrongful life” cause of action and therefore were also split on the question of quantifying damages. This fundamental question was left unresolved there. As a result, in the years since the decision, real difficulties have arisen in applying the principle rule about recognizing a child’s claim of “wrongful life”. In the absence of binding precedent, the Zeitzov decision was implemented inconsistently. In light of these difficulties and in light of the need to resolve additional related issues, we joined the discussion.
The Supreme Court, in an expanded panel of seven justices (authored by Deputy President E. Rivlin) ruled that:
The child’s claim of “wrongful birth” can no longer be recognized. Each of the two different modes of reasoning that support the “wrongful life” as presented by the Court in Zeitzov hold significant legal challenges that go both to the element of damage and the element of causation, making it difficult to recognize this cause of action under the tort of negligence. Deputy President Ben-Porat’s approach inevitably leads to finding that there are situations where it would have been preferable for one not to have been born at all. This finding cannot be based on any legal foundation and should not be based on any morals or values. In the absence of such findings, the element of damage in a wrongful life claim cannot be proven. President Barak’s position in Zeitzov is also problematic as there is no causal link between the breach and the damage of life with a disability. But beyond these legal difficulties, there is a moral difficulty in the view that the life of one born with a disability can be considered – in the eyes of the child itself – as “damage”. The finding that it is better for a certain person not to have been born at all carries the impermissible implication that life has no intrinsic value, that is not reduced – and certainly not eliminated – due to a disability. This view is a necessary and important part of our recognition and belief in the sanctity of life, human value and dignity, and the rights of people with disability to dignity and equality. This position is reflected in the jurisprudence of courts in common law countries as well.
That said, there is neither law nor principle preventing the recognition of the parents’ cause of action for “wrongful birth” – a cause of action whose recognition is not in dispute. On this issue there is no place to do away with the ruling in Zeitzov.
Alongside the general recognition of the parents’ claim of wrongful birth, the Court found it appropriate to address three issues arising from this claim. These were not discussed in Zeitzov in depth and it is time for this Court to establish clear precedent about them. These issues concern the matter of proving causation, quantifying damages, and damage, specifically for infringement of autonomy.
Ruling on these issues ultimately led to a significant expansion of the “wrongful birth” cause of action of parents, who may be compensated for expenses incurred in raising the child and providing for its needs throughout the child’s life. In this manner, the Court (here) realizes the worthy objective at the basis of the Zeitzov decision – to compensate as fully as possible for the medical and rehabilitative needs and the care of a child born with a disability, but to do so through the parents’ wrongful birth claim.
Proving causation: insofar as parents wish to bring a cause of action for “wrongful birth”, they must prove the existence of a causal connection. To prove this causal link between the breach of duty of care and the different damages caused by the disability, they must show, as the first stage, that had the committee for pregnancy terminations possessed all relevant medical information (information that was not provided to the parents because of the negligent conduct) it would have permitted the parents to terminate the pregnancy. At the second stage, and only if the answer to the first question is in the affirmative (otherwise the causal link is broken anyway), the parents must show that but for the breach of duty of care, they would in fact have approached the committee for pregnancy terminations for permission.
Because of the difficulties the second stage causes, significant weight should be given to the first question in terms of causal link – the question whether the committee for pregnancy terminations would have permitted termination in a particular case. In addition it is appropriate that the decision by the committee for pregnancy terminations would serve as a rebuttable presumption regarding the parents’ position on termination. Further, general factors, such as allegiance to a particular religion group,do not suffice to rebutt the presumption that if the committee had permitted the termination then the parents would have approached it with a request. These factors may be relevant, but since they might reflect a single aspect among the entirety of the woman’s individual circumstances, much caution must be taken when drawing any conclusions based on that aspect. Therefore, for instance, it is insufficient that the parents’ religion may forbid them from terminating a pregnancy; the court must be persuaded that the mother would have actually obeyed the religious prohibition. Finally, it must be emphasized that, when it is proven that the committee for pregnany terminations would have permitted a termination, the parents' failure to prove that they would have chosen to terminate the pregnancy does not negate their possible claim for damages due to the violation of their autonomy, that is, their right to make such an important decision about their lives in an informed manner. For this damage, they are entitled to separate compensation.
The issue of damage and quantifying compensation: the parents are entitled to compensation from the defendant for the additional expenses required to fulfill their child’s medical needs and provide the child with care, and when, because of the disability, the child continues to depend on them beyond childhood, they are entitled to compensation for expenses they incure for the rest of the child’s life. This includes ordinary maintenance expenses, at least to the extent that there the child has limited income potential and there are no special circumstances that deny this right. When a child is expected to have an income despite the disability, the expected income is to be deducted, that is, the appropriate rate of the average wages must be deducted from the compensation to the parents.
General damages: in cases of wrongful birth the mental and psychological harm continues throughout the parents’ (plaintiffs) lives. This damage is different and separate from the harm to autonomy, which is a one-time harm that occurs at the moment where choice is denied them. The ongoing and excruciating mental harm therefore warrants a significant level of compensation.
Violation of autonomy: the question of the link in the parents' suit between the causes of actions for wrongful birth and violation of autonomy is that in some cases where the harm to the parents for denying their right to autonomy – to decide whether to continue a pregnancy or to terminate it – can be distinguished from other harms and where violation of autonomy is an additional, substantial harm that goes to the core of the right, the violation of autonomy must be separately compensated (in addition to their right to claim compensation for any other direct damage caused to the parents). As for the extent of the compensation – the compensation must be individual, considering the concrete violation and its circumstances. That said, it has already been found that since this is an estimate of general damage, courts would make this estimate based on the circumstances and judges’ life experiences. As a general rule, the extent of the compensation for violation of autonomy must be directly proportional to how material the missing information was and how the violated interest was to the core of the right and how much it implicated that right. Where the court was persuaded that the plaintiff’s autonomy had been violated in a way that reaches the core of that right and on a material aspect, it must grant appropriate compensation that reflects the full severity of the violation.
The Matza Commission recommended that the legislature “authorize the courts to include in their decisions instructions regarding the use of the financial compensation, as much as the court may see fit to do so in order to ensure the child’s needs are met. Additionally, we recommend legislation stating that the compensation designed to guarantee the needs of the child would not be considered property of the parents in case of bankruptcy, nor would it become part of their estate or be available for any garnishment or enclosure of any kind.” These recommendations are wise and reasonable, not just for this cause of action, but more broadly as well. We hope that the legislature will answer this call, and that until then courts develop the appropriate mechanisms with the tools at their disposal.
The outcome: in terms of abolishing the child’s cause of action, it will not apply to pending cases where the parents’ suit was not brought. Justice Rubinstein, in concurrence, believes that the outcome of this decision should be stayed for a year, and Justice Naor points out that there is no place to determine, through a transitional provision in the matter at hand, the fate of a child’s claim that has not yet been brought.
Justice Rubinstein believes that we are replacing a theoretically and practically difficult system with one that has no theoretical challenges but gives rise to practical difficulties. However, at the end of the day, he joins in principle the opinion of the Deputy President, while pointing out the difficulties and calling upon the legislature to pronounce upon the issue.
|Rivlin, Eliezer||Primary Author||majority opinion|
|Grunis, Asher||majority opinion|
|Joubran, Salim||majority opinion|
and counter appeal CA 572/08
CA 8776/08 CA 2600/09 CA 2896/09 CA 3856/09 CA 3828/10
Appellant in CA 1326/07 (Respondent in the counter appeal):
Appellant in CA 572/08: The State of Israel
Appellant in CA 8776/08: A (a minor)
Appellant in CA 2600/09 and Respondent in CA 2896/09:
Maccabi Healthcare Services
Appellants in CA 3856/09:
1. Eran Sidi
2. Tsipora Sidi
3. Yigal Sidi
Appellant in CA 3828/10 Clalit Health Services v.
Respondents in CA 1326/07 (Appellants in the counter appeal):
1. Professor Ami Amit
2. Mor Institute for Medical
3. Clalit Health Services
Respondent in CA 572/08: A (a minor)
Respondents in CA 8776/08:
1. Victoria Sharai
2. Alex Walpert
3. Maccabi Healthcare Services
4. Dr. Yivgenia Mazor
5. Kolmedic Ltd.
6. Dr. Yosef Bracha
Respondents in CA 2600/09 and Appellants in CA 2896/09
1. Noam Sabagian
2. Tsiona Sabagian
3. Hayim Sabagian
Respondents in CA 3856/09: 1. The Sick Fund of the Histadrut haClalit
2. Dr. David Kampf
Respondents in CA 3828/10:
1. Chen Na'ava
2. Chen Eli
3. The estate of Chen Ziv Or z"l
The Supreme Court sitting as a Civil Appeals Court
CA 1326/07 and counter appeal from the judgment of the Haifa District Court of 25 December 2006 in CC 745/02, given by the Honorable Judge
CA 572/08 from the judgment of the Haifa District Court of 2 December 2007 in CC 259/02, given by the Honorable Judge B. Gillor
CA 8776/08 from the judgment of the Be'er Sheva District Court of 31 August 2008 in CC 3344/04, given by the Honorable Judge S. Dovrat
CA 2600/09 and CA 2896/09 from the judgment of the Jerusalem District Court of 29 January 2009 in CC 8208/06, given by the Honorable Judge
CA 3856/09 from the judgment of the Jerusalem District Court of 2 April 2009 in CC 1338/97, given by the Honorable Judge A. Habash
CA 3828/10 from the judgment of the Jerusalem District Court of 11 April 2010 in CC 8459/06, given by the Honorable Judge I. Inbar.
Before President D. Beinisch (emeritus), President A. Grunis, Deputy President E. Rivlin, Justice M. Naor, Justice E. Arbel, Justice E. Rubinstein & Justice S. Joubran
For Petitioner in CA 1326/07: Carmi Bustanai, adv.;
Shimrit Cohen-Daum, adv.
For Respondent 1 in
CA 1326/07 and counter appellant: Chaim Zelichov, adv.; Ofir Ben Moshe, adv.
For Respondents 2-3 in CA 1326/07
And counter appellants: Ilan Uziel, adv.
For Appellant in CA 572/08: Orit Sohn, adv.; Michal Sharvit, adv.
For Respondent in CA 572/08: Meiron Cain, adv.; Akram Mehajne, adv. For Appellant in CA 8776/08: Eli Lotan, adv.; Dalia Lotan, adv.
For Respondents 3-6 in CA 8776/08, Appellant in CA 2600/09 and Respondent in CA 2896/09, Respondents in CA 3856/09 and
Appellant in CA 3828/10: Yaakov Avimor, adv.
For Respondents in CA 2600/09 and Appellants in CA 2896/09
and Appellants in CA 3856/09: Amos Givon, adv.; Itai Givon, adv. For Respondents in CA 3828/10: Anna Rife-Liganza, adv.
For Amicus Curiae: Eli Zohar, adv; Inbal Zohar, adv.; Meirav Sagi, adv.
For the Israel Bar Association: Asaf Posner, adv; Eti Libman, adv.;
Avishai Feldman, adv.
Deputy President E. Rivlin: Background
1.ThehearingofthebeforeuswasconsolidatedfordecisionthequestionstheissueknownasacauseofforTheariseswhereaiswithsomeitisthatbydefendants–usuallypersonnelwhohadtheasapatient–wouldhisTwoseparatecausesofactionarisethenegligentconduct: parents' causeof action,andthecauseof action thechild The
child's cause of action is customarily called "wrongful life", in order to differentiate it from the parents' cause of action, which is called "wrongful birth".
2.Thetheoffor"wrongfuland"wrongfulwastwentyfiveagointheoftheCourtinCA518/82Zeitsov v. Katz,40(2)IsrSC85(1986)ZeitsovInthatwhichwashandeddownbyapaneloffiveitwasheld,thatisnothingpreventingrecognitionoftheparents'causeofaction–"wrongfulofaction –inofthetortandinaccordancewithregularTheeventhen, around the question the of the cause of action.
The Court, per the majority of Justices on the panel, recognized the cause of action of the child – the "wrongful life" cause of action. However, the four majority Justices disagreed regarding the theoretical reasoning for recognizing the "wrongful life" cause of action, and as a result, also regarding the question how the extent of the damage should be measured. That decisive question remained answerless in that case.
3.DeputyM.D.Levinconcurring,heldthatthecauseofactionshouldbeonlyintherare"initcanbeheldthatitwouldhavebeenbetterforacertainpersontohaveborn. Atitwillbeasocietalthatitisaofconsensusitwouldhavebeenbetterforacertainnottohavebeenbornthantohavebeenbornwithsevereatp.97).Inthosetoherthebirthof thechildisthatwas causedtoofthatinmonetary itwas is"he isliableforbeingshouldprovidehimthroughwhichtheofthecanbelessenedtotheboundaryofthepossible"(Zeitsov,p.100).Ben- Porat, DP clarifiedthatherisnotforatobebetweenachildwithandaborn"buttoexhausttheinorderthathefunctionandininferiorThissolution,sheleadsto"thetakingintoofthefactthathavingbeenborn(evenifagainsthisbestisachildbeforeuswho isentitledto athatis worth evenif onlywithinthe of his at p. 100).
4.(thenJustice)A.Barak,inwhoseopinionJustice)S.Levin,alsodeterminedthatcauseactionfor"wrongfullife"shouldberecognized.However,theuponwhichhispositionisisandcaninfluencescopeofcasesintheofaction"wrongfulandthewayisAtofthisviewaccordingto"thedutycareofthedoctorhimtotakereasonablecautionarysothatthewillnothaveadefect.Itisthusalsotherightthatnotbeturnhislifealifeofdefect.Theminordoeshaveanyrighttoalackofalife.Thewhichthelawisnottheinhavingalife,butrathertheinterestinlifewithoutdefect.Thus,thewhichtheisliableforisthecausingoflife,orlackofalife.Thedamagewhichthedoctorisliableforisthecausingofdefectedlife… the doctor is liable for causing defected life, and that is
formulated by comparing the defected life to life with no defect" (Zeitsov, at p. 117). According to that approach, the child's cause of action will be recognized also in cases in which the disability is not exceptionally severe, and does not necessarily lead to the conclusion that it would have been better for the child not to have been born. Estimation of the damage, according to this approach, is not calculated according to the difference between the disabled life and a lack of life (as per the approach of Ben- Porat, DP), but rather according to the difference between the disabled life and life without disability. Although had the tort not been committed the damaged party would not be alive, and certainly would not live a life with no disability, according to the position of President Barak, the uniqueness of the issue allows estimating the compensation in comparison to life without disability, in the framework of flexible interpretation that is adapted to the principle of restitutio in integrum.
- Justice E. Goldberg, dissenting, determined that the existence of a cause of action for the child against the doctor, due to whose negligence the child was born disabled, cannot be recognized at all in circumstances where without the negligence the child would not have been born at all. Preferring the pre-creation nihil over life, even in rare cases – thus determined Justice Goldberg – is impossible.
6.Althoughin theZeitsov casethecase of aninfantdueto"wrongfullife",fromitundecided.Asainthethatpassedsincethewashandedaroseintheruleofthecauseofactionforofthesefromtheexistenceof twotheofthecauseofandthewayiscalculated,andfromtheveryofcauseof Thus,thecourtstointer aliawhatapersonwithhowextentofthatshouldbewhetherslight(oronlyseverecanacauseofactionforaninfant.However,withoutstare decisistheZeitsov rulingwasnotinafashion.Duetoandtothetoalsorelatedwedecidedtotheofthecasesbeforeus,andtoorderbeforeanexpandedpanelofsevenjustices.IntheofD.of292011,wediscussedquestions ofthat decision:
- Does a cause of action exist and what is its legal basis? In light of the time that has passed since the Zeitsov ruling was handed down and/or the continual difficulty in implementing it, should it be altered, or should one of the approaches expressed in the Zeitsov ruling be preferred over the other?
- Assuming that a cause of action exists: should the parents' action (wrongful birth) or the child's action (wrongful life) be recognized, and in which cases will each of the causes of action arise?
- The principles of calculation of compensation in both actions: in the parents' action: comparison between a healthy child and a child with defects, or another standard? In the child's action: comparison between no life and a life with defects? A comparison between a life with defects and a healthy life?
- Proving a causational link – in the parents' action (proof that they would have terminated the pregnancy had they known of the expected defect). In the child's action – is his death better than his life?
- Is violation of autonomy – as a cause of action in the parents' action – an additional cause of action, or an alternative to the cause of action for wrongful birth?
It was further held in that decision that the questions of principle shall be decided first in the framework of a partial judgment, after which the individual hearing in each of the cases would continue, to the extent that would still be necessary. Thus, we shall relate in this decision to the questions of principle only and to the arguments regarding those issues. The decisions in the various cases shall be heard separately and not before this panel, and we are not determining anything regarding the liability of any of the defendants in the cases before us.
The Parties' Arguments
7.Thecounseloftheinthecasesbeforeussupportedrecognitionofthecauseoffor"wrongfullife",totheofPresidentBarakinZeitsov Itwasthatofthisisitunnecessarythebetweenlifeandnolife,andoflifeInaddition,arguethatapproachadvancescertaintyandintheasitnotawhichisinherentlyvague,adefectandadefect;andevenisincomparisontoaiscalculatedbyathatisintortforbodilywhichisacceptedbytheItisthecomparisonsuchthatofthementitleatoandothersdoentitleapersontoisnotappropriateeither,asitbetweenofconsiderationsandsupportorderingfortheinvolvedindisability,evenifitisaThecounselevennotethattotheiritispossibletoprovideafullfortheofthechildintheoftheaction,theoftheparentsistotheperiodwhichthechildisuponhisItisthatfromthestandpoint,itisappropriate to the of action of thechild when thedoctorevenifisinthelinkbetweentheandthefromtheThethatnon-recognitionoftheactionwouldquasi-immunitythetodoctorswhoactedandthatthereisimproperinthatwithdefectispreferable tono life, when itisraisedbyadoctorwho performstests the purpose ofwhich isto allow in case ofa defect.
- The counsel of the defendants in the various cases, on the other hand, support annulment of the child's action for "wrongful life". According to their position, President Barak's approach in the Zeitsov case is at odds with fundamental principles of tort law, whereas the approach of Deputy President Ben-Porat is impractical, because the court has no real tools with which to compare between a situation of life
with disability and a situation of no life. In addition, the very decision that there are situations in which it would have been better for a person not to have been born since he has a defect contains a problematic societal-moral statement which contradicts fundamental values of society regarding human dignity and the sanctity of life. In any case, the defendants are of the opinion that if the cause of action for "wrongful life" is recognized, the approach of the Deputy President should be preferred, and differentiation should be made, between "severe" defects regarding which it can be said prima facie that it would be better for a person had he not been born and more "minor" defects which do not establish a cause of action, according to the extent of the person's independence of functioning and his ability to be of benefit to himself and others, to be integrated into society and to live a life that entails satisfaction, meaning, and enjoyment. It is argued that an additional possibility is to make such a differentiation on the basis of criteria used by the pregnancy termination committees when deciding upon authorization to perform an abortion at the viability stage. Moreover, it is argued that the parents' cause of action should not be recognized either, as the expenses they bear in caring for their child constitute mitigation of damage, and where the party who suffered the direct damage – the child – has no cause of action, nor do the parties who mitigate the damage have a cause of action. The conclusion, according to the defendants' approach, is that only the parents' action for violation of autonomy should be recognized.
- The Israeli Medical Association and the Israel Bar Association also appeared in the proceedings, with the status of amicus curiae.
The medical association extensively discussed the existence of a trend which it calls the aspiration to give birth to "the perfect child." According to its stance, the statement that it would be better for a person not to have been born leads to an intolerant attitude toward disabled persons, and as such considers them as having an inferiority due to which their birth should be prevented in advance. Thus, the medical association is of the opinion that the approach of Deputy President Ben-Porat in the Zeitsov case should be adopted, whilst determining clear criteria which would limit the use of the cause of action for "wrongful birth" (or "wrongful life") to the most difficult and severe cases, as per its definition. These criteria, proposed the medical association, can be based upon Health Ministry instructions to the multi-district pregnancy termination committees. The medical association further points out the sentiment of doctors in the field of obstetrics and gynecology, as well as that of those serving in the pregnancy termination committees, according to which the concern regarding a law suit is likely to lead to an increase in medical tests and to "superfluous" medical procedures or abortions.
- The Israel Bar Association is of the opinion that the causes of action for "wrongful birth" and "wrongful life" should be recognized. It is further of the opinion that the practical difference between the various stances that recognize actions for "wrongful life" in principle is smaller than it first appears. Thus, because even according to the position of President Barak the child-claimant must prove, in the framework of the element of causal link, that the defect is so severe that the pregnancy termination committee would have authorized an abortion due to it; and because, on the practical plane, there is no essential difference between the two approaches regarding compensation. The Israel Bar adds that to its understanding, the caselaw on the question of wrongful birth does not have an influence on the number
of abortions that will be performed or upon the scope of tests during pregnancy, as it is the parents' desire for a healthy child that leads to these results, not the question of provision of retrospective compensation. Furthermore, the Israel Bar Association argues that public policy regarding the question of performing abortion should be determined in the framework of the law applying to it, and not in the framework of tort law. On the merits, the Israel Bar Association supports the position expressed by President Barak in the Zeitsov case. Decision of the question whether it would be preferable for a person not to have been born, it is argued, is a difficult one, which should be avoided and which is likely to lead to caselaw that is not uniform. The Israel Bar Association further argues that refraining from recognition of the child's cause of action is likely to leave him with no compensation if his parents make unenlightened use of the compensation granted them, or if he is put up for adoption after birth.
- Last, note that the Attorney General notified us that the Minister of Justice ordered the establishment of a public commission, at his request, headed by the Honorable Deputy President (emeritus) E. Mazza (hereinafter: the Mazza Commission), in order to formulate his stance regarding the existence of a cause of action due to wrongful birth and the question of the appropriate boundaries of such a cause of action. The findings of the Mazza Commission were submitted to the Court on 19 March 2012, in the framework of "the Report of the Public Commission on the Subject of 'Wrongful Birth'" (hereinafter: the Commission Report). However, the Attorney General did not express his stance regarding the questions put up for decision before us. Thus, we refrained from viewing the findings of the report themselves as part of the parties' arguments, as they lack the status in law of the stance of the Attorney General.
The operative findings of the commission did not serve as part of the pleadings before us; nonetheless, it is worth noting that the Commission Report is the fruit of circumspective, serious and thorough work; sitting in the commission were the best of experts, many witnesses were heard, position papers from various sources were submitted, a survey of all the relevant issues was presented, and all was examined thoroughly and meticulously. We read the report and found that in certain respects, the commission went in the direction of the findings we reached. In light of that, we shall refer below to the Commission Report to the extent that it is relevant to the cases at hand.
12.consideringtheoftheaspectsofissue,wehavereachedtheinthelegalrealityofourtwentyfiveyearstheZeitsov rulingwashandeddown,thecauseofaction–thecauseofactionfor"wrongful – can no longer berecognized.
There are substantial legal difficulties, regarding both the element of damage and the element of causal link, which make difficult the recognition of this cause of action in the framework of the tort of negligence. But above and beyond these legal difficulties, there is moral, substantive difficulty in the view that the life of a person who was born with disability can be considered – in the eyes of the infant himself – as "damage". Recognizing this difficulty, we in effect continue according to the moral view outlined by President Barak in the Zeitsov ruling. Furthermore, as detailed below, we wish to realize the proper purpose at the foundations of the Zeitsov ruling –
granting compensation, as fully as possible, to fulfill the needs of the disabled child; however, to do so via the cause of action of the parents, which does not raise those difficulties.
The Difficulties in Recognizing the Cause of Action for "Wrongful Life"
13.Asnotedabove,attheoftheZeitsov ruling,whichthecauseofactionforlife",aretwoandseparateAccordingtobothapproaches,aofactionfor"wrongfullife"isbaseduponthetortofnegligence.Theelementofnegligenceisinby notin of theonthepriortoorduringthe(orconcernofadefectinthefetuswhichisgoingtobeborn,orbynottheoftheinfantinwhetherregardingexistenceofconcernofadefectorregardingtheneedfor,oradditionaltestscanorruleexistenceofconcern"(theCommission Report, at
p. 38). Both approaches assume that this element has been established. However, each of the approaches raises logical or legal difficulties regarding the existence of one or more or the other elements of the tort of negligence: damage or causal link.
The Difficulties regarding the Element of Damage
14.TheintheofDeputyBen-Poratraisessubstantivethe element of damage. Accordingtotheofisdefinedinthecauseofaction,astheornolife(theofthechildnotandwith(theofthetoofthechildisthedamagetodefinitionrequiresjudicialofthequestionthereareinwhichithaveforanottobeenandthusrequiresquestionsfoundinofphilosophy,morals and religion, regarding the of existence, asopposedto withtheseisanissueforfromthestandpointthe(theCommission Report,at39).Andindeed,President(thenJustice)A.Barakout inhis theZeitsov ruling,as follows:
This approach [of Deputy President Ben-Porat – E.R.]… once again raises the question whether the Court is able to determine that in certain conditions the lack of a life is preferable to a life of suffering. Do our worldview, our approach regarding life and our lack of understanding of non-existence, allow us, as judges, to determine that there are indeed situations, even if they be rare, in which it is preferable not to live than to live a life of suffering? What is the meaning of such "preference"? When the life expectancy of a person is shortened, we assess this suffering of his. This assessment is difficult, but it is possible, as we are able to assess the meaning of life; but how can we assess the meaning of the lack of life? … When we compensate for death or for shortening of life expectancy, we do not compare the state of life to the state of death, and we do not determine
the preference of one over the other, as we do not have the tools to do so. All we do is recognize the right to continue living – even if in suffering, and even if with defect… thus, how can we assess lack of life? According to which rational standards can a reasonable person determine that even in the most extreme case, lack of life is preferable to life with defect? (Zeitsov, at p. 116; emphasis added).
15.Indeed,fromthenormativeitappearsthatitisnotfortheCourttoawhosuffersfromacertainofdisabilitywouldbeifhehadnotborn.theCourtinno wayhasthetoolstoreachaasthelacksnatureofandsuchcourse,isnottobe("nohasyetfromthere"–saidtheCourt–"noonehasyetfromthereinordertotellwhatthelackofalsothebyRonenPerryolohaImZoTviotNezikinbeginb'Avla'33(3)M507,545-546andreferencesinnote177PerryFromtheaswell,itisbetterthatthediscussionnotbebycourts.Asaccordingtothe of Deputy Ben-Porat, to onlyinrarecases,andinfantmostapproachrequiresdecisionthequestionwhatthoseseveredefectshowever,lackingaforsuchtheisthatcourtisnotsocialthat canrulingsonquestions" Commission Report,at p. 39).
16.Itshouldthatinsuchacasetheisnotquantifyingthebutratherifanydamageoccurredall.Indeed,generallycaselawisflexibleregardingprovingofofthereinherentprobativewhichdonotdependupontheparty.Soitisprovingfuturelossese.g.:CA10064/02"Migdal" Chevra l'Bituach Ltd. V. Abu Hana,60(3)IsrSC13,par.7-9Abu Hana)).flexibilityshouldbewithpurespeculation.Intheus,theisnotonlyintheofthedamage,buta–whetherthereis, oris not, Thus notes Perryin this context:
I agree that difficulties of calculation and assessment… need not deter the courts from determining liability; however, a differentiation should be made between cases in which the existence of damage is obvious but it is difficult to assess its scope, and cases in which the question of the existence of damage cannot even be decided. Non-monetary damages are damages that most of us have experienced, directly or indirectly. Our acquaintance with various situations of non-monetary interests allows us to know when a change for the worse in the situation of such an interest takes place. The question of the existence of damage is not unsolvable. The only question, of course, is the question of quantification – but in light of the fact that from the conceptual standpoint this problem arises only after the question of liability has already been decided, it cannot justify (a priori) negation of that liability. The situation under present discussion is different. Non-existence is a situation with which nobody is familiar, and
thus comparing it to a situation of existence is always impossible. Without a relational plane to which the present situation of the plaintiff can be compared, we cannot determine if damage has been caused or not. The problem is not merely a problem of quantification" (Perry, at p. 547).
17.ThestateintheUnitedtheofdefining thenature of a of life":
The argument that the child was in some meaningful sense harmed by being born and would have been better off not being born suggests that there is a perspective, apart from our life and world, from which one can stand and say that he finds nonexistence preferable to existence (Goldberg v. Ruskin (1986), 113 Ill. 2d 482).
It was further written that:
Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians. Surely the law can assert no competence to resolve the issue, particularly in view of the very nearly uniform high value which the law and mankind has placed on human life, rather than its absence ( Becker v. Schwartz (1978), 46 N.Y.2d 401, 386 N.E.2d 807).
18.Lackingthecapabilitytothequestionifandistoadisabledlife,theisthetheofapproachesontheNota bene: itisnotaofapproaches;ifitwere,itbetobetweenthembyaCourtruling.Astheare itis to anycriteriondecidinganditistoaextentuponfeelingandworldview.Thus,foronecanwhatthelifeclearlytotheofenjoymentandapersonoutofhistofillhiswithvalue;topersonalqualityhisofhisandthesurroundinghissubjectivetoalive;histoandbeawareofthewondersofandability.Aquestionisthosebemeasured–fromtheofthechild,whodoesnotknowanyrealityfromtheonewhichhewasborn,ortheviewpointahealthyperson.aretoacannotbeT.Orrwellinin 5587/97 The Attorney General v. A, 51(4) 830, 858 (1997):
… we must refrain from adjudicating regarding the quality of life of [the child] in comparison to a regular child his age. We must focus upon examination of the well being of [the child] from his own viewpoint. When dealing with a child who suffers from defects from birth – even severe defects, like in the case before us – his life, with its disability – is the "whole" which that child enjoys. From the standpoint of [the child], another way of life was never a matter of consideration. The quality of
life is that quality which is possible in light of the severe defects he suffered. That, from his standpoint, is everything. Such a life is not worthy of less protection than the life of a child who was born and developed normally.
Even if it were possible to point out situations in which it is clearly preferable for a person not to have been born – and, as aforementioned, we lack that ability – there is real difficulty in defining and demarcating those situations in a way that would allow prediction.
- Deputy President Ben-Porat proposed in Zeitsov to solve this difficulty through examination of the question if it would have been better for a person not to have been born through the lens of "the reasonable person"; in other words: whether the reasonable person would be of the opinion that the life of the damaged party isn't worth living. However, without any knowledge regarding the quality of the alternative to life with disability, nor is it possible to find assistance in a standard of reasonableness in order to find a proper answer. Furthermore, the ability to get enjoyment and value out of life despite disability is also subjective, and one can assume that it varies from person to person. Indeed, at times use is made of the term "not worth living" regarding life with severe disability; however, that is merely a phrase intended to indicate the existence of great difficulty, and in no way whatsoever can it be derived from it that the situation of nonexistence is truly preferable.
- Nor does the proposal to rely upon criteria of the pregnancy termination committees in order to demarcate the type of cases in which the "wrongful life" cause of action would be recognized provide a real solution to the question whether and when nonexistence is preferable to existence. The considerations which guide the pregnancy termination committees are not limited to the question if being born or not being born serves the welfare of the fetus; the committees also consider, in the framework of the entire balance, the welfare of the parents and their desire to terminate the pregnancy. Authorizing an abortion in a given situation does not necessarily inform of a widespread societal view according to which in such a case it is better not to be born. The authorization is based, at least partially, upon the societal view regarding the pregnant woman's right to autonomy, her dignity and privacy, and the scope of the right to have an abortion. The scope of the right to terminate the pregnancy is not, therefore, comprised of the interests of the fetus alone. For that reason, and as I shall yet clarify, non-recognition of the child's action does not create legal disharmony in relation to the recognition of the right to have an abortion in certain situations.
21.AninDeputyapproachexistenceofthenotional duty of care thechild,whichisprovideandcorrecttohisastoanabortion.Indeed,thereisnoadutyofcareapersonwhohasnotbeenborn(asisdoneinofmedicalrecognitionofadutyofcareina"wrongfullife"requiresofaprotectednottobebornincertainThisbeonthetoanabortion,as(andtheanddoesadutytowardthefetus. Andindeed,theopinionof
Justice Goldberg in Zeitsov was based upon the view that a right not to be born does not exist.
In conclusion, the approach of Deputy President Ben-Porat requires determining, in certain cases, that there are situations in which it would have been preferable for a person not to have been born. That determination cannot be established from the legal standpoint, and it is not proper to establish it from the substantive-moral standpoint. Lacking such a determination, it is not possible to prove the element of damage in the wrongful life cause of action (and see also: Bilha Kahane "Pitsui begin Kitsur Tochelet Chayim 've'haShanim ha'Avudot' baTviot b'Ila shel Holada b'Avla" Mishpatim al Atar D 1, 4 (5772)).
The Difficulties Regarding the Element of Causal Link
22.TheofPresidentA.BarakinZeitsov theintoabetweenlifewithdisabilityandnon-existence.Barakabasisforof"wrongfullife"ofaction.Accordingtohistheelementshoulddefinedas"defectedlife",inwithwithoutdefect.inthisasolutionisprovidedfortheinthedamageinthetortandavoidstheneedtotheinit(thatis:whetherandwhenitcanbesaiditwouldbebetterforaninfantnottohavebeenbroughttheotherareno regardingthe of causallink.
- The difficulty in determining a causal link between the negligence and the damage of a life with disability stems from the uncontroversial fact that it is not the negligence of the doctor which caused the damage of "defected life" (as per the definition of President Barak). Indeed, it is not the doctor who caused the disability of the infant, as even without the negligence, the infant could not have entered the world any other way than with his disability. In other words: proper medical care could not have led to prevention of the disability, and the possibility of that particular child being born without disability does not even exist. Deputy President Ben-Porat discussed this in Zeitsov, stating that:
There was no possibility that the minor would enter the world whole and healthy. Determination of damage, by the vary nature of damage, requires comparison between the situation of the claimant without the tort, and the situation after it. The only interpretation of this rule in our case is, to my best understanding, the comparison between nonexistence (without the negligence) and defected existence (as a result of the negligence). Charging the harmer on the basis of a comparison with a healthy child means punishment on foundations of an imaginary reality… The solution which my colleague supports seems to me to be impossible from the legal standpoint, and with all due respect – also unjust (Zeitsov, at p. 105; emphasis added).
The approach of President Barak thus deviates from the fundamental principle of the law of compensation regarding restitutio in integrum (and see the criticism by Perry in his aforementioned article, at pp. 559-560). Note that President Barak was
aware of these difficulties, but wished to find a solution which would allow appropriate compensation for the children and their parents.
24.Thelegalarenottobe"overcome".Fromofjustice,ofthelackofcausallinkbetweenthenegligenceandtheonlydamagewhichcanbebetweenwithdisabilityandwithnoisthatdidnottotheparty;inacasewouldbeanFromthatthereisalsonoplaceforthethat"oneoftheweightyreasonsfordoctorsotherinthecaseathand,isthereasonisatortfeasor,acrossfromhimthereisaninfantwithadefect–asevereone–andinthatiscalledforthetwo,theofjusticetendstowardthetheinfant,wholivewithhisdisability…itbesaidthatthesituationistoawhoincarwithandandaninnocentwhoatlastescapedawithaCanitbesaidthatthe'mens rea'ofahastydriverwho,onlybychance,didconcludedrivingafatal is fromthedriverwhomthe drivingconcludedinaresult?"T57-58(1997)).Thistypeofalthoughitbevalidfroman(andinfactistheofisnotvalidthetortlawlawdoesnotduetonegligent conduct,butratherduetocausing damage negligentlySoitisofjustice,andsoitisfromtheofdeterrence.itbesaidthattheresultsofdefendant'sconductwithversusnonexistence)aredamage;andwheretheonlydamagethatcanbeshown(lifewithdisabilitylifewithnowasnotby –it is not or just to upon the defendant.
Note also, that the path from recognition of the child's action for wrongful life directed against the doctor, to recognition of the child's action against the parents who begat him, is a short one; and no approach is interested in advancing that.
Annulling the "Wrongful Life" Cause of Action – The Moral Aspect
- Recognition of the cause of action for "wrongful life" is faulty not only due to legal difficulties, but also due to difficulties regarding principles and values.
Definition of life itself – even if it is life with disability – as damage, and the determination that it would have been better for a certain person not to even have been born, contain an unacceptable violation of the view that life has inherent value, that does not diminish, and certainly does not disappear, due to the existence of a defect or the existence of a disability (see, e.g.: Roee Gilber "haTsorech baHachra'ot Kashot baTviot shel Chayim b'Avla veHolada b'Avla: He'arot v'Hearot b'Ikvot T.A. (Mechozi Haifa) 259/02 A v. The State of Israel" MOZNEI MISHPAT 7 441, 466-467 (2010)). This view is an important and necessary part of our belief and recognition of the sanctity of life, the value of the individual and his dignity, and the right of people with disabilities to dignity and equality.
26.SinceZeitsov wasdownfiveyearsago,thesereceivedBasicLaw:DignityandLibertyinArticle1,thetowhichthebasicoftheindividualinareupontherecognitionof the value of the individual and the sanctity of his life.TherecognitiontheseisbasedonuniversalvaluesandvaluesoftheStateofasaJewishstatethattheoflife.Theisborninimage.Havingbeenborn,hisdignityandthesanctityofhislifearetobeHisisbetheastheyHislifeispriceless,bethethey Life is a value– for all.
This moral-legal view is expressed well in the Equality of Rights for People with Disabilities Law, 5758-1998, which determines as a "basic principle" in section 1 that:
The rights of people with disability and the commitment of society in Israel to those rights are based upon the recognition of the principle of equality, the recognition of the value of the individual who was created in [God's] image and on the principle of the dignity of every person.
Section 2 of the law determines that its objective is:
…to protect the dignity and liberty of a person with disabilities, and to entrench his right to equal and active participation in society in all areas of life, as well as to provide an appropriate solution for his special needs in a way which will enable him to live his life with maximal independence, privacy and dignity, whilst realizing his full ability.
- According to our societal view, in the framework of our moral belief, and pursuant to our legal principles, the definition of the life of a person with disabilities as "damage" is not appropriate, is not moral and is not possible. It substantively violates the principle of the sanctity of life. Quantification of the damage of a person with disability – in comparison to the possibility that he would not have been born at all or in comparison to a person with no disability – is itself a violation of the value of his life and of the presumption, which is not to be negated, that the value of the lives of people with disabilities is absolute, and not relative.
28.Indeed,thecostofof"wrongfulofactionissosevere,thatinFrance,inwhichCourdeCassationrecognizedcauseofactionforlife,itwasofdisabledwhichthatandthatitrelatestoinferiorevento(asaresultofthatinter alia,lawinwasSee:GilSigalhaMa'arechet–alHoladaveKol(vol.4)10,12SigalPerry,pp.524-525;M.Duguet,Wrongful Life: The Recent French Cour de Cassation Decisions 9 J. HealthLaw 139 (2002)).
This position of principle is also expressed in the caselaw of the courts in the various United States. Thus, for example, it was determined in the aforementioned Bruggeman case:
It has long been a fundamental principle of our law that human life is precious. Whether the person is in perfect health, in ill health, or has or does not have impairments or disabilities, the person's life is valuable, precious, and worthy of protection. A legal right not to be born – to be dead, rather than to be alive with deformities – is a theory completely contradictory to our law (718 P.2d at 642).
So it is there, and so it is here in Israel as well.
In Berman v. Allan, 80 N.J. 421, 404 A. 2d 8 (N.J. 1979) it was written that:
No man is perfect. Each of us suffers from some ailments or defects, whether major or minor, which make impossible participation in all the activities the world has to offer. But our lives are not thereby rendered less precious than those of others whose defects are less pervasive or less severe.
For the same reasons themselves, the Court in Canada refrained from recognizing the "wrongful life" cause of action, clarifying that this view is common to all of the Common Law systems, excepting a small number of states in the United States:
It is Unlikely that Canadian courts will entertain wrongful life claims in the near future. There are many technical and policy objections to them and this has led to a rejection of these claims in all common law jurisdictions other than a few American states… There is a risk that the recognition of a wrongful life claim will devalue the sanctity of life in general and the plaintiff’s life in particular. A finding of liability may be interpreted as a finding that the plaintiff’s life is a legally recognized loss and that he would be better off dead (Osborne, supra, at 141).
- It is thus no wonder that the result we have reached unanimously, regarding the need to annul the "wrongful life" cause of action, was reached also by the majority of the members of the Mazza Commission, who determined that "the recognition of the cause of action is at odds with the fundamental values of our law" (the Commission Report, at p. 38). This result is also in line with the current law in the great majority of the Common Law states, as clarified below.
- The difficulties I have discussed led the great majority of the various legal systems not to recognize a cause of action for "wrongful life". The great majority of courts in the states of the United States do not recognize the cause of action for "wrongful life" (see, e.g.: Phillips v. United States, 508 F. Supp. 537 (D.S.C. 1980) (applying South Carolina law); Elliott v. Brown, 361 So. 2d 546, 548 (Ala. 1978); Walker ex rel. Pizano v. Mart, 790 P.2d 735, 740 (Ariz. 1990); Lininger v. Eisenbaum, 764 P.2d 1202, 1210 (Colo. 1988); Garrison v. Medical Center of Delaware, Inc. , 571 A.2d 786 (Del. 1989); Kush v. Lloyd, 616 So. 2d 415, 423 (Fla. 1992); Spires v. Kim, 416
S.E.2d 780, 781 - 82 (Ga. Ct. App. 1992); Blake v. Cruz, 108 Idaho 253, 698
P.2d 315 (Idaho 1984); Clark v. Children’s Memorial Hospital, 955 N.E.2d 1065, 1084 (Ill. 2011); Siemieniec v. Lutheran General Hospital, 117 Ill. 2d
230, 251, 512 N.E.2d 691, 702 (Ill. 1987); Cowe v. Forum Group, Inc., 575
N.E.2d 630, 635 (Ind. 1991); Bruggeman v. Schimke, 718 P.2d 635 (Kan.
1986); Kassama v. Magat, 792 A.2d 1102, 1123 (Md. 2002); Viccaro v.
Milunsky, 406 Mass. 777, 783, 551 N.E.2d 8, 12 (Mass. 1990); Taylor v.
Kurapati, 236 Mich. App. 315, 336 - 37, 600 N.W.2d 670, 682 (Mich. 1999);
Eisbrenner v. Stanley, 106 Mich. App. 357, 366, 308 N.W.2d 209, 213 (Mich.
1981); Miller v. Du Hart, 637 S.W.2d 183, 187 (Mo. App. 1982); Smith v.
Cote, 128 N.H. 231, 252, 513 A.2d 341, 355 (N.H. 1986); Becker v. Schwartz,
46 N.Y.2d 401, 386 N.E.2d 807 (N.Y. 1978); Azzolino v. Dingfelder, 315
N.C. 103, 337 S.E.2d 528 (N.C. 1985); Hester v. Dwivedi, 733 N.E.2d 1161,
1165 (Ohio 2000); Ellis v. Sherman, 512 Pa. 14, 20, 515 A.2d 1327, 1339 - 30
(Pa. 1986); Nelson v. Krusen, 678 S.W.2d 918 (Tex. 1984); James G. v.
Caserta, 332 S.E.2d 872, 880 (W. Va. 1985); Dumer v. St. Michael's
Hospital, 69 Wis. 2d 766, 233 N.W.2d 372 (Wis. 1975); Beardsley v.
Wierdsma, 650 P.2d 288, 290 (Wyo. 1982).
31.ThereasoningusedasabasisincaselawistoThus,foritwasthatcourthasnostandardaccordingtowhichitthatithavepreferableforanottobeenborn,thatincaseadoeshavetherighttobeborne.g.:Elliot v. Brown, 361 So. 2d546, 548 (Ala. 1978)).The lackof therightnottobeborn, itis does not contradictthe of a to have an abortion:
[A] legal right not to be born is alien to the public policy of this State to protect and preserve human life. The right of women in certain cases to have abortions does not alter the policy ( Elliot, 361 So. 2d at 548).
An additional reason, that is also used by the courts in the various states, is that there is no real possibility of quantifying the compensation for "wrongful life", as that would require determining the relative value of the situation of nonexistence – a situation regarding which there is no information (see: Siemieniec, 512 N.E.2d at 697). The courts in the United States also discussed the difficulty in determining criteria for differentiation between cases where the severity of a person's disability leads to a situation in which it would have been preferable for him not to have been born, and cases where the disability is not that severe (see, e.g.: Siemieniec, 512 N.E.2d at 699).
- Three states alone in the United States have judicially recognized the cause of action for "wrongful life": California (see: Turpin v. Sortini, 31 Cal. 3d 220, 643 P.2d 954, 182 Cal. Rptr. 337 (Cal. 1982) ; Curlender v. Bio-Science Laboratories, 106 Cal. App. 3d 811, 165 Cal. Rptr. 447 (Cal. 2d Dist. 1980)); Washington (Harbeson v. Parke-Davis, Inc., 98 Wash. 2d 460, 656 P.2d 483 (Wash. 1983)); and New Jersey (Procanik v. Cillo, 97 N.J. 339, 478 A.2d 755 (N.J. 1984)). In this caselaw no answer is found for the difficulties in recognizing the "wrongful life" cause of action. In fact, most of the reasoning at the basis of the judgments that recognized the "wrongful life" cause of action regards the desire to assist, by way of charging compensation, people
who need it due to their disability, at least where it is possible to locate a person who acted negligently. Thus, for example, the court declared expressly in Procanik:
Our decision to allow the recovery of extraordinary medical expenses is not premised on the concept that non-life is preferable to an impaired life, but is predicated on the needs of the living. We seek only to respond to the call of the living for help in bearing the burden of their affliction (478 A.2d at 763).
It is obvious that we cannot use such reasoning to recognize a cause of action in tort law. It might be taken into consideration, and should be taken into consideration, in determining the amount of compensation after the tort has been recognized.
- A similar approach, which characterizes most of the courts in the United States, was taken by other Common Law states. In McKay v. Essex Area Health Authority  1 QB 1166, it was determined in England that lacking express legislation determining otherwise, Common Law does not recognize a cause of action for "wrongful life" (in England such a statute was enacted; the case revolved around a girl born before the statute entered effect). Influenced by this case, and for reasons similar to those detailed above, the cause of action for "wrongful life" was rejected in Canada as well (see e.g.: Bovingdon v. Hergott, 2008 ONCA 2, 290 D.L.R. (4th) 126; Phillip
H. Osborne, Essentials of Canadian Law: The Law of Torts 140-141 (2000)) and in Australia (Harriton v. Stephens (2006) HCA 15). In the latter case, the Supreme Court of Australia rejected the action of a child for wrongful life, ruling that the damage cannot be assessed by comparing life with a defect to no life whatsoever (see also: Waller v. James (2006) HCA 16).
In Germany the Federal Constitutional Court ruled that the cause of action for "wrongful life" should not be recognized ( BVerfGE 88, 203 (269)), as it contradicts the constitutional principle of human dignity, entrenched in Article 1 of the German basic law. Germany of today, having internalized the horrors of the past, has recognized in its constitution and the caselaw of its courts the duty to sanctify human life.
The Supreme Court of Australia also reached a similar conclusion (OGH (25.5.1999) JB1 1999, 593). In France as well, as a result of caselaw that recognized the cause of action of the child, the law was amended in 2002, determining that a person cannot claim that his very birth caused him damage. The law allows the child's action only if the doctor's conduct directly caused his disability or worsened it (for a circumspective survey of the comparative law and of caselaw of additional states, see: Perry, at pp. 518 -525; the Commission Report, at pp. 32-38; Sigal, at p. 12).
- The understanding that an independent cause of action for "wrongful life" should not be recognized is thus shared by many legal systems. There is, then, a sort of "global consensus", common to the various legal systems, regarding negation of the cause of action for "wrongful life" (at very least without legislation that determines otherwise). It seems that a judge, who
sees himself (inter alia) as part of this global legal system, and who takes part in his writing in the "global chain novel", to paraphrase the well known metaphor of Ronald Dworkin ((RONALD DWORKIN, LAW'S EMPIRE 228-29 (1998)), will place before his eyes the existence of the existing consensus regarding a certain legal issue:
[Global judicial cooperation] can also serve as a restraint imposed upon domestic courts, preventing them from exceeding the borders of the general consensus about what the "novel" should tell... referral to foreign law is similar to Dworkin's metaphor of a chain novel. When a judge considers himself part of the system - for that matter the global legal system - he will tend to avoid a significant departure from the global consensus (Eliezer Rivlin, Thoughts on Referral to Foreign Law, Global Chain-Novel, and Novelty, 21 Fla. J. Int'l L. 1, 15 (2009).
Indeed, a global consensus does not oblige a court in our legal system, and in fitting cases, there might be a good reason to deviate from it; however, there is no doubt that it should be given appropriate weight, while relating to the reasons and reasoning that led to its creation, and examining whether it should be adopted in the framework of the Israeli legal system as well. In the issue before us, we should not deviate from the global consensus. The Israeli legal system sanctifies human life, and blocks any detraction from the value of life. The life of a person, any person, is better than his death.
- Thus, our conclusion is that the child's cause of action for "wrongful life" can no longer be recognized. However, from the practical standpoint, as clarified below, a significant expansion of the cause of action at the disposal of the parents of the infant due to "wrongful birth" – a cause of action the recognition of which is not controversial – will allow granting the parents compensation that will cover the costs of raising him and all of his needs even after he grows up, and for the entire period of his life expectancy.
The Parents' Cause of Action – an Action for "Wrongful Birth"
- Recognition of the action for wrongful birth – the parents' action – does not raise the same problems of law and principle involved in recognition of the child's action. On that issue there was full agreement between all the Justices on the panel in Zeitsov. Thus wrote President (then Justice) Barak in that case (at p. 113):
"Indeed, recognition of the liability of the doctor toward the parents is in line with the regular rules of negligence law… between the doctor and the parents (who belong to the type of people who are cared for by the doctor) there is proximity, and the doctor has a notional duty of care. On this issue, there is no importance to the differentiation between a situation in which a doctor was negligent and without the negligence the minor would have been born healthy, and a situation in which had it not been for the negligence the minor would not have been born at all. In both
cases, we are dealing with the damage of parents and the deviation of doctors from the proper level of care. In the proper balancing between the interests of the various parties, the monetary burden of the medical negligence should be cast upon the creator of the risk and his insurer. It is to be hoped that in this way a proper level of health can be ensured. There is no justification for granting immunity to doctors who have caused damage by their negligence… parents have a right to plan their family, and in that framework it is appropriate for the attending doctor to take proper cautionary measures toward them and inform them of the risks involved in conception, pregnancy, abortion, and birth.
A necessary element in formulating liability through the tort of negligence is the element of damage. The existence of this element does not, in and of itself, raise any special problem in the context of the parents' action…
We too are of the opinion that the parents' cause of action for wrongful birth is in line with the regular definition of the tort of negligence, and does not raise any real difficulty regarding the issue of restitutio in integrum. Indeed, in the context under discussion this cause of action raises difficulties regarding the element of causal link. In addition – and President Barak discussed this Zeitsov – "questions might arise regarding the heads of damages for which compensation is given (i.e., whether compensation is given for the expenses and pain and suffering involved in the raising of a child), and regarding the calculation of the compensation ( i.e., should the benefit stemming from raising the child be set off from the loss)" (id, at p. 113). These difficulties cannot negate the recognition of the parents' cause of action, and in any case, they will be fully worked through below.
- From the standpoint of morality and principle as well, the parents' claim does not raise the same difficulty that arises regarding the infant's action. In the parents' action, the life of the child itself is not defined as damage. The damage is manifest in the additional monetary implications and the psychological implications which the parents are forced to bear, due to the negligence. Accepting the parents' claim does not mean that the child's life has no worth, or that it would be better for him himself had he not been born; its meaning is that the parents were denied the possibility of choosing not to raise a child with disability, with all the difficulty that entails. There is a real difference between relating to a living and breathing child, with a personality, desires and feelings – as someone whose life is worthless, to the point that it would be better for him had he not been born, an attitude which we are not willing to accept; and relating to the right of the parents, as they were, prior to the negligent act, to choose whether to continue the pregnancy or to have a legal and permitted abortion, at the stage when their child was a fetus, devoid of independent life. Therefore, there is no contradiction between my approach regarding the inherent value of life and the recognition of the right of the parents to choose not to bring into the world a child with disability of a severity that legally allows having an abortion.
When examining the parents' aforementioned right to choose, the entirety of the considerations must be taken into account, including their right to build their lives as they choose (within the law) and the considerable difficulties on the psychological, practical and even economical planes involved in raising a child with disability. Nota bene: that is not decisive in the moral issues that are external to the tort issue, which deal mainly with the question when and to what extent the parents' choice to do everything in order to avoid raising a child with disability is legitimate, from the moral standpoint. It suffices to say that this choice is composed of many factors, which do not necessarily include a worldview according to which the life of a child with disability is not a life worth living; it is a legal choice, which is at the disposal of the parents and is denied them due to an act of negligence.
- Indeed, naturally the point of view of the parents usually changes after the birth of their child. Naturally, once their child has been born, his parents love him. The disability only intensifies the love. Nonetheless, they are often capable – and the court too is capable – of separating their present love for their child from their sincere statement that if they would have been given the choice in advance, before their child was born and became a person, they would have chosen not to bring into the world a child with disability like his.
- Finally, note that we found no basis in the argument raised before us, according to which the parents do not have a cause of action as sufferers of direct damage, but only as mitigators of the child's damage. In CA 754/05 Levy v. Mercaz Refui Sha'arei Tsedek (yet unpublished, 5 June 2007)(hereinafter: Levy) we discussed the nature of the differentiation between a sufferer of primary damage and a sufferer of secondary damage:
"Classification of damage sufferers as primary or secondary is the result of the attempt to identify the character of the causal link between the damage caused them and the tortious conduct. The primary damage sufferer is the party whose injury – physical or property – is the direct result of the tort; the sufferer of secondary damage is the party injured as a result of the injury caused to another party" (id, at par. 22 of the judgment).
According to that standard, the parents' damage, which establishes a cause of action for them due to "wrongful birth", puts them in the position of primary damage sufferers. The injury to them, both on the monetary plane (derived from their duty to care for the special needs of the child) and on the non-monetary plane, is a direct injury, due to the very fact that their child was born due to the negligence. The tortious conduct led directly to the damage of the parents. Not only was the negligent act committed directly toward the parents; the injury to them was also a direct injury. The injury does not derive from the disability of the child – as that disability was not even caused by the negligence; the injury stems from the costs that they bear and from the pain and suffering that they experience. The birth of the child was accompanied with an economic and psychological injury to the parents. This injury is in fact the realization of the risk at the outset, which makes the
conduct of the damager tortious. If in the Levy case the mother was on the borderline between being a sufferer of primary damage and the sufferer of secondary damage, in the case under discussion the border is crossed, and it can be clearly said that there is a direct injury (and see, also: Asaf Posner "haIm Yoter hu Tamid Yoter? Hebetim Ma'asi'im laMachloket baSugiat haHolada b'Avla", at note 6 (to be published in the S. Levin Volume)).
- The conclusion is that there is no or hurdle of law or principle preventing recognition of the parents' cause of action for wrongful birth, and regarding that issue we should not stray from the rule determined in Zeitsov. Twenty five years after the Zeitsov ruling was handed down, we are making more flexible the worthy purpose which stands at its base, and allowing a solution to the great majority of the medical, rehabilitation, and assistance needs of the child, but we do so in the framework of his parents' action for wrongful birth.
- Alongside the theoretical recognition of the parents' cause of action due to wrongful birth, I see fit to discuss three issues that arise regarding the implementation of that cause of action. They were not discussed extensively in Zeitsov, and the time has come for a clear rule to be determined regarding them by this Court – these issues regard the question of proving the causal link, assessment of damage, and the head of damages of injury to autonomy.
Proving the Causal Link
- A central difficulty inherent in the wrongful birth cause of action relates to the element of causal link between the tortious act (the doctor's negligence) and the alleged damage (that stems from the child's disability). Indeed, as any tort action, the parents' action also requires proof of a causal link, and it has already been ruled on that matter that "the task of deciding the question of the existence of a causal link between the breach of the disclosure duty of the doctor and the damage manifest in wrongful birth – is not at all easy. It requires the court to try to search the souls of the parents and to determine what their position would have been regarding the question of continuing the pregnancy had they been exposed to all of the information they needed (Hendel, J. in CA 9936/07 Ben David v. Entebbi (yet unpublished, 22 February 2011)).
In the cases under discussion, it is clear that the infant's disability is a birth defect that was not caused as a result of the doctor's act or as a result of his omission. In such circumstances it must be proven in the framework of proving the element of causal link, that had it not been for the negligence, the parents of the infant would have chosen to terminate the pregnancy by having an abortion, and thus would have refrained from bringing him into the world. Against that backdrop, a number of practical, moral and theoretical questions arise: how will the parents prove in such actions the element of causal link, in other words, that had it not been for the negligence they would have chosen to terminate the pregnancy? Is it appropriate, in light of the psychological and moral difficulties which examining the parents on the witness stand raises, to waive the requirement of proving causal link in cases for wrongful birth completely? Is the court permitted to rely upon group considerations
as a basis for deciding the question of causal link? These questions will be examined below.
- In order to prove the causal link between the negligence and the various types of damage stemming from the child's defect, it must be shown, in the first stage, that if all of the relevant medical information (information which was not brought to the knowledge of the parents due to the negligence) would have been before the pregnancy termination committee, the committee would have permitted the parents to terminate the pregnancy. In the second stage, and only if the answer to the first question is positive (as otherwise, in any case the causal link is broken), the parents must show that if it weren't for the negligence, they indeed would have applied to the pregnancy termination committee for permission (Mr. Posner, in his aforementioned article, calls stages "hurdles": "the objective hurdle" requires proof that the pregnancy termination committee would have approved the termination of the pregnancy; and "the subjective hurdle" requires showing that if it weren't for the negligence, the woman would have decided to terminate the pregnancy).
- Proof of the parents' entitlement to terminate the pregnancy pursuant to a decision of the pregnancy termination committee relies on clear criteria, entrenched in statute and in Health Ministry guidelines. Performing artificial abortions in Israel is arranged in sections 312-321 of the Penal Law, 5737-1977 (hereinafter: the Penal Law). Pursuant to the provisions of that law, performing an abortion ("termination of pregnancy") is conditional upon the informed consent of the woman and permission from the pregnancy termination committee. The makeup of the committee and the causes for granting permission are generally set out in sections 315-316 of the Penal Law. For our purposes the cause determined in section 316(a)(3) of the law, regarding an infant that is "liable to have a bodily or psychological defect," is important. To this general provision we must add the guidelines of the Health Ministry, which detail how the committee is to employ its discretion, according to the stage which the pregnancy has reached. On this issue, an important criterion is the question of the fetus' reaching the "viability stage", set at the age of 24 full weeks. Whereas the "regular" committee hears applications for termination at the beginning of a pregnancy, over this age of pregnancy, a "multi-district committee", as defined in Health Ministry circular 76/94 of 28 December 1994, hears the application for termination of pregnancy. Health Ministry circular 23/07 of 19 December 2007 is intended to arrange the issue of termination of pregnancy at the viability stage, and determines on that issue a detailed hierarchy of disabilities, ranked according to their influence on functioning (slight, medium, and severe disabilities). The circular determines a clear relationship between the type of disability, the risk that it will occur, and the stage of pregnancy.
- The criteria that guide the committees serve, de facto, to demarcate the boundaries of the wrongful birth cause of action, as this cause of action does not arise
- due to lack of causal link – where the disability is not of the type that would lead to the granting of permission to perform an abortion. Furthermore, there is a logical- statistical fit – which is an appropriate one – between the considerations that the committees take into account in their decisions, and the considerations that guide the parents when they wish to receive permission to terminate a pregnancy. In light of that, it is appropriate that the pregnancy termination committee decision serves also as
a sort of refutable presumption regarding the parents' stance about terminating the pregnancy.
That presumption may help in solving a part of the difficulties that arise from the second stage needed in order to prove the causal link. As stated above, the parents must prove that if it hadn't been for the negligence (that is to say, if the full relevant medical information had been before them), they would have chosen to terminate the pregnancy. It is uncontroversial that requiring the parents to prove that they would have terminated the pregnancy, by examining them on the witness stand after their child has come into the world, raises considerable difficulties.
46.Thefirstfromtheveryneedtoahypothetical factualchain:wouldifthewouldhaveknownabouttheyindeedappliedtofortotheiftheyhaveapplied–wouldthehavetheirAndifitwouldhavethe–wouldtheThisnotonlyfortheneedtoquestionsariseseverydayincases.fortheKadosh rulingtheinthecausaltestsinoftheconsentcauseofaction,totheneedtoassesanevent(CA1303/09 Kadosh v. Beit haCholim Bikur Cholimpar.ofopinion5MarchKadosh"Theaccepted–thuswaswritteninanothercase–"arenotappropriateforcasesinwhichtheassesshowagivenwouldhaveactedifthehadprovidedhiminadvance with the information the and in a (CA4384/90Vaturi v. Beit haCholim Laniado,51(2)IsrSC171,191 (1997)).
47.InKadosh –inofconsent–we regarding theproperforprovinglink (id, par.26 ofopinion).Inotedthattheobjective testtotheinterestthe control his as it"distances fromthe desire ofparticularandreliesupondesireconsiderationsof J. inCA2781/93Da'aka v. Beit haCholim 'Carmel', Haifa,IsrSC526,606Da'aka)).Yet,aschoiceofasubjective alsoraisesbecausethestagewhenthepartyknowsthetortioushisOnissue(thenJustice)D.isnodoubtthatisintheoftheattheashealwaysdealsthiswithabackwardglance,atatimewhen hefromtheof Inthe courts thatitisnottorequireainagonyduetothathewasgiven,totestifyandpresenttheanswertothewhathewouldhavedoneatthethedecisiontothewasmade,ifhehadknownofallthe (Da'aka, at p.553).
These difficulties raised by the implementation of the subjective test for examining the existence of causal link are infinitely intensified when dealing with the
parents' claim for wrongful birth. The assumption that "it isn't human" to expect that a patient "testify and reliably present" how he would have acted had he known the facts necessary for decision as they really were, is reinforced in the context under discussion and emphasizes the psychological difficulty that parents are forced to deal with. Indeed, in addition to the regular difficulty inherent in such testimony, the parents are also forced to explain how their testimony on the witness stand, that they would have chosen to terminate the pregnancy in case of a defect like the one that occurred, is in line with their love for their child, once he has been born. In this context, the argument has been made that where the court accepts the parents' factual version, according to which they would have aborted the fetus, a moral problem is also created, and a rift is liable to be caused between the parent and the child. That, however, is not so.
- Indeed, the moral dilemma involved in investigating the parents on the witness stand reflects, in full force, the complexity of the cause of action for wrongful birth. The question of causal link is examined ex ante, and examines what the parents would have decided at the time of the pregnancy had they been supplied with the full relevant data; however their testimony is given ex post, after their child has already been born (this dilemma also arises regarding the damage question, and shall be discussed in that context below). Mr. A. Posner answers this dilemma, in the framework of a dissenting opinion in the commission, as follows: "a completely correct answer is that when the question of termination of pregnancy (or the question whether to get pregnant) was under discussion, the infant did not exist, at all (in case the question was whether to get pregnant), or in his present form, the form of a living person. A parent is not required to tell his child 'I am sorry that you are alive' or 'I don't love you'; it is sufficient that he persuade that when the pregnancy was in its early stages, or the fetus not yet a known person, the mother would have terminated the pregnancy" (Commission Report, at p. 105). There is no better concretization of parental sentiment than the words which came from the heart in one testimony before the district court (in CC (Be'er Sheva District Court) 3344/04 R. W. v. Maccabi Sherutei Briut (unpublished, 21 August 2008)). The testimony – of a woman raising her handicapped son – was that she would not have hesitated to terminate the pregnancy had she known of the existence of any defect, on the basis of the difficulties she experiences in the daily confrontation with the difficulties of her previous child, who suffered from cerebral palsy. Despite her unwavering position regarding getting an abortion, the mother testified: "I love R. very much, he contributes an enormous amount to the family, he is our light, he is our sun… I do not say he constitutes damage to the family, but if I would have gotten an abortion, in another year the same R. would have been born, but with a hand, and then he would have contributed to the family in the same way but he would not suffer from all the problems that a handicapped child has… we now are crazy about him, he is everything for us, that is clear…" (id, par. 4 of the judgment).
- An additional difficulty arises on the practical level. It is argued that proving the causal link element might be more difficult for certain groups of claimants than for other such groups. The courts have concluded, more than once, that certain parents would have chosen not to have an abortion, even if they would have had all the needed information. The courts so ruled, finding assistance in data on issues such as lifestyle and religious belief; existence of fertility problems and difficulty in conceiving in the past; as well as the age of the mother and her obstetric history.
According to this argument, for example, an ultra-orthodox mother, whose first pregnancy was achieved in excruciating fertility treatments at a relatively late age, is likely to have a more difficult time proving that she would have an abortion had she been aware of the existence of a risk that the child would be born with a defect, in comparison to a secular young mother with a number of children whose pregnancy was spontaneously achieved. Moreover, the use of such data led to the argument – which was sounded in the hearing before us as well – that the requirement of proving that had it not been for the negligence the parents would have chosen to terminate the pregnancy, harms parents who are willing to bear the difficulty of raising a child with disability and rewards the very parents who are not willing to bear that difficulty (a similar argument is also raised in the legal literature in the United States, and see: Wendy F. Hensel, The Disabling Impact of Wrongful Birth and Wrongful Life Actions, 40 Harv. C.R.-C.L. L. Rev. 141, 172 (2005); it is further claimed that parents who due to their religious beliefs would not have an abortion are thus discriminated against.
- As a result of these difficulties, in a number of judgments of the first instance the opinion was expressed that the requirement of proof that the parents would have chosen to have an abortion can be completely waived, and replaced with a legal presumption. Thus, for example, Judge M. Drori ruled in CC (Jerusalem District Court) 3198/01 A. v. The Jerusalem Municipality (unpublished, 12 May 2008) that:
prima facie, such an a-priori presumption stands in contradiction to one of the foundations of tort law, that the conduct of the defendant or defendants was the sine qua non of the damage… thus, for example, if it is positively proven that the damaged party would have been born with the defect even if there hadn't been any negligence, prima facie, it should not be said that the negligence is the reason for the damage, and the defendants should not be charged for it…
However, in my opinion, there is great and important public benefit in adopting the approach of Judge Benyamini [regarding waiving the requirement of proof that the parents would have had an abortion – E.R.]. Not only do we prevent the need for the parents' testimony, with their retroactive vacillations, but Judge Benyamini's approach entails equality between all pregnant women, regardless of religion, race or belief.
… is compensation for a secular Jewish woman certain, but all the other women must explain what the range of beliefs is in the religion to which each of them belongs, and whether or not they would have had an abortion?! Is there a need, in each particular case, to focus upon the details of that religion, on the approaches and nuances in it, and to determine whether according to that religion abortion would have been permitted in the circumstances of that defect, and after that, will there be a need to categorize the claimant mother in the relevant subgroup in that religion and to determine whether she would have had an abortion, according to what is customary in that subgroup of that religion?!" (id, par. 285-286 of the judgment).
And see the judgment of Judge A. Benyamini: CC (Tel-Aviv District Court) 1226/99 A.L. v. Yaniv (unpublished, 29 March 2005).
- Despite the difficulties described above, the requirement of proving the existence of a causal link between the negligence and the damage cannot be waived (this conclusion was reached both by the majority and by the minority opinions in the Mazza Commission – see p. 47 and 98, respectively). A solution like that proposed above is not possible in the framework of existing tort law. It is, de facto, the forfeiting of proof of one of the elements of the tort of negligence, as without proving that if it had not been for the negligence the parents would have chosen to have an abortion, it is not possible to prove causal link between the negligence and the birth of the child. Waiving proof of the causal link element in actions of this type would lead to casting liability upon parties who may not have actually caused the damage, and to entitlement of plaintiffs with compensation for damage which was not caused them by a tort. Not only is such a result at odds with tort law and its objectives; in addition, it does not do justice, in that term's basic meaning, with the parties in the suit. In the American legal system as well the mother is required to prove that had it not been for the negligence, she would have had an abortion (see, e.g.: Dumer v. St. Michael’s Hospital, 69 Wis. 2d 766, 776, 233 N.W.2d 372, 377 (Wis. 1975); Alan J. Belsky, Injury as a Matter of Law: Is this the Answer to the Wrongful Life Dilemma? 22 U. Balt. L. Rev. 185 (1993)), despite the potential that the parents' testimony on the issue may harm the welfare of the child )Keel v. Banach, 624 So. 2d 1022, 1026 (Ala. 1993)(.
- Thus, to the extent that the parents are interested in suing on the basis of the cause of action of "wrongful birth", they must prove the causal link element of that cause of action. The refutable presumption, based upon the decision of the authorized committee, will assist in overcoming these difficulties.
Despite the fact that the proof of the causal link element cannot be waived, there is difficulty in dealing with the details of the religious beliefs of the parents, as well as in dealing with other group-based considerations. In any event, attempting to retrospectively determine how the parents would have chosen to act inherently involves a great extent of uncertainty. The various indications in which courts find assistance – including data such as a religious lifestyle, age, obstetric history and performance of additional tests in the framework of private medicine, are merely general indications, which, practically, rely to a significant extent upon group data. Categorizing the parents in one of these groups or another is plagued with a significant extent of speculation. In cases in which the court must rely upon general, group data, there is no choice but to choose a certain level of abstraction, and courts often determine working assumptions which assist in dealing with the inherent uncertainty (and see, in the context of calculation of compensation: Eliezer Rivlin and Guy Shani "Tfisa Ashira shel Ikaron Hashavat haMatzav le'Kadmuto baTorat haPitsui'im haNeziki'im" Mishpat v'Asakim 10 499 (2009)). Furthermore, group data are not always evidence of the tendencies of the individual. Even in routine times – but especially in times of crisis – the individual is likely to stray from group dictates and conventions, especially when they are group conventions. In fact, the individual's original position might be more complex and multifaceted than can be assessed according to his belonging to one group or another. Thus, significant weight should be given to the first question that was presented regarding causal link – the question
whether the pregnancy termination committee would have approved an abortion in a given case.
As mentioned above, the decision of the pregnancy termination committee should serve as a sort of refutable presumption regarding the parents' stance about having an abortion. In general, where an abortion is permissible according to the societal convention, as expressed in the criteria which guide the pregnancy termination committee, as said, it can be assumed, as a factual assumption, that typically, the individuals in society would also plan their actions in a similar fashion. Nonetheless, it should be emphasized that this is a factual, not a normative, assumption; in no way can it determine that refraining from having an abortion, in circumstances in which the pregnancy termination committee would have allowed an abortion, is unreasonable or undesired conduct. Its meaning is merely that from the practical standpoint, it should be assumed that typically, the individuals in society usually act, at least proximately, in a way that fits the criteria that guide the pregnancy termination committees.
- It should also be emphasized that the presumption according to which, in circumstances where the pregnancy termination committee would allow an abortion the parents would also have submitted an appropriate application to the relevant committee, can not be refuted exclusively through general data, i.e.. regarding membership in a certain religious sector. Such data is at times likely to be relevant, but since it represents a single aspect of all the individual data regarding the woman, great caution should be employed in making conclusions upon it. Thus, it should be remembered that the question to be decided is not what is the stance of the religion to which plaintiffs belong regarding having an abortion in the circumstances of the case, but rather how the particular claimants standing before the court would have acted. As mentioned above, the individual himself is likely to stray from group dictates or conventions, especially when the conventions are group conventions; and relating to him, factually and normatively, as an individual whose choice is not predestined, is inevitable. Thus, it is not sufficient that the parents' religion prohibits them from having an abortion to determine the result; in order for that datum to be relevant for decision, the court must be persuaded that the mother would have obeyed that prohibition de facto. Of course, it is not impossible that having an abortion in certain circumstances would be permitted within the various religious beliefs, and often there are various approaches in the different religions regarding the circumstances which justify having an abortion (on this issue see, e.g.: CC (Jerusalem District Court) 3130/09 A.K.V. v. Sherutei Briut Klalit (unpublished, 28 November 2011); CC (Jerusalem District Court) 9134/07 Alsayad v. The State of Israel (unpublished, 17 February 2011)).
In fact, even today the courts of first instance do not rely exclusively upon data such as religious affiliation, and more significant weight is given to the individual data of the case (see e.g.: CA 7852/10 Tidona v. Kupat Cholim Leumit shel ha'Histadrut ha'Ovdim (unpublished, 15 March 2012); CC (Haifa District Court) 1014/05 Zidan v. The State of Israel (unpublished, 24 December 2011); CC (Central District Court 5193-11/07 S.M.S. v. Malach par. 5(d)(99)(unpublished, 14 September 2010); CA (Haifa District Court) 10492/97 Aftabi v. Sherutei Briut Clalit (unpublished, 30 September 2001)).
- Finally, it should be emphasized that where it has been proven that the pregnancy termination committee would have allowed an abortion, even if the parents could not prove that they themselves would have chosen to terminate the abortion, that does not derogate from their ability to sue for the damage caused to them due to the violation of their autonomy, and in other words: their right to make such a significant decision in their lives in an enlightened fashion. For that damage they are entitled to separate compensation, and I shall discuss that extensively below.
The Question of Damage and Calculating Compensation
- Having passed the hurdle of the causal link, it must be further determined, in the framework of the parents' action, what damage entitles them to compensation. The question that needs to be considered is whether the parents are entitled to compensation only for the additional expenses they must bear for the medical care and assistance for their child – and at a certain point living expenses (hereinafter: the Additional Expenses), or should they also be compensated for the expenses involved in raising their child, including those which they would have borne had the child been born healthy. These expenses, which a healthy child requires in any case (hereinafter: the Regular Expenses), are considered the "base cost" (or "base layer", in the words of commission member Asaf Posner, adv), as opposed to the Additional Expenses which stem from the child's disability.
56.Itisinatortaction,compensationisgivenonlyforthebytheandisnottheexpenseswhichwouldhavebeenborneevenifthewouldnotoccurred.Thus,forexample,whenaninfantisinjuredto(and birth), the for the of aidThecourtreduces,theofhoursneededtotakecareofthetheofhoursneededtoforachild,andisgivenfortheresultinginotheronlyfortheadditionalapersonwhoiswoundedinanandneedsa vehiclein ordertoget around, will receive only theadditionthatisfromhisinotherthethetheanditsandofacarandits(andtheexamplesintheCommission Report –thePosner opinion, at p. 115).
It would have been possible to think that the implementation of the restitutio in integrum test in the parents' action for wrongful birth would determine that had the negligence not occurred, the child would never have been born, so the parents would not have had to bear any expenses whatsoever for raising the child. Making the parents' situation as it would have been had the negligence not occurred according to the regular rules requires, prima facie, compensating them both for the regular expenses involved in raising a child and for the special expenses caused to them due to the child's disability. The "Additional Expenses", according to those principles, also include the regular living expenses.
regular expenses involved in raising a healthy child, during the period before he reaches adult age; they should be compensated only for the additional, special expenses, which they bear due to the birth defect. Indeed, had the negligence not have occurred, the child would never have been born; however, there are good reasons not to charge the negligent damager to pay all of the expenses of raising the child. These reasons reflect the complexity of the cause of action under discussion, and emphasize the theoretical and practical difficulties inherent in this cause of action, with which the courts of various instances have dealt over the years. What are these reasons?
Casting liability upon the defendant who caused the damage, as detailed above, is done from an ex ante point of view, and under the assumption that if the parents had been given a choice in advance, before their child was born, they would have preferred, under the particular circumstances, not to bring a child with that disability into the world; however, examination of the damage caused to the parents cannot be performed whilst ignoring the change which has occurred in the passage from liability to damage – the change manifest in the birth of the child. Examination of the damage must thus be done from an ex post point of view, which takes into consideration the fact of the child's existence, which is not considered, and must not be considered, in and of itself, to be damage. In retrospect, after the disabled child has been born, his very birth is not considered to be damage in his parents' eyes. The feeling of love which the parents feel toward their child also exists when the child is born with disability. Those feelings also exist if, had they been given a full choice at the outset, the parents would have chosen not to bring the child into the world. After he has entered the world, his parents want him and enjoy the intangible advantages stemming from his very birth and his upbringing. The Mazza Commission described this well in its report: "Indeed", it was noted, "the disabled life of the child itself does not constitute damage to the infant, and his parents as well, after he has entered the world, are not considered injured due to his very existence; however, as needs have been created which involve special expenses, the party without whose negligence these special costs would not have been created should bear them" (id, at p. 60).
The American Court described this in Marciniak v. Lundborg, albeit in a different context (of raising a healthy child whose parents did not want to be born), but from the viewpoint of the child, whose parents are suing for compensation for his birth. The following is applicable also to the need to compensate the parents for the Additional Expenses:
Defendants next argue that "awarding damages to the parents may cause psychological harm to the child when, at a later date, it learns of its parents' action for its wrongful birth thereby creating an 'emotional bastard.'" Again, we do not agree. The parents' suit for recovery of child rearing costs is in no reasonable sense a signal to the child that the parents consider the child an unwanted burden. The suit is for costs of raising the child, not to rid themselves of an unwanted child. They obviously want to keep the child. The love, affection, and emotional support any child needs they are prepared to give. But the love, affection, and emotional support they are prepared to give do not bring with them the economic means that are also necessary to feed, clothe, educate and otherwise raise the child. That is what this suit is about and we trust the child in the future will be
well able to distinguish the two. Relieving the family of the economic costs of raising the child may well add to the emotional well-being of the entire family, including this child, rather than bring damage to it (Marciniak v. Lundborg, 153 Wis. 2d 59, 67, 450 N.W.2d 243, 246
- Of course, that cannot detract from the severity of the difficulties which the parents of disabled children experience or the suffering which is the destiny of parents who themselves experience the suffering of the child; for these damages – to the extent they are proven – the parents will be compensated separately, in the framework of the head of damages for pain and suffering. At the same time, the point of departure for the assessment of the parents' damage is that the life of the child – after he has been born – is not, in any way whatsoever, damage for which compensation should be made, and that this is how the parents also see it. Thus, the regular expenses which the parents bear for raising the child – are not damage. The damage is thus manifest in the Additional Expenses – the additional costs stemming from the negligence of the damaging defendant, and it is only natural that the parents receive compensation for them.
- Here the special and extraordinary force of the action for wrongful birth is revealed: the inherent dissonance between the negligence in providing the information necessary to make a decision whether to bring the child into the world and the character of the damage, which is caused after the child has already entered the world, when his very life is not considered damage.
Nota bene: the same conclusion, according to which the defendant is charged with the Additional Expenses, can also be reached from another perspective, which is actually the other side of the same coin: in principle, the positive results of the birth of the child must also be expressed, and as a practical issue, the way this is done in the framework of the doctrine of compensation is quantification of all of the intangible benefits stemming from the birth of the child and his upbringing, and discounting them from the compensation to which the parents are entitled. A general estimation of these benefits will approximately equal the regular expenses involved in raising a child. Discounting the regular expenses involved in raising the child from the total of all the expenses involved in raising him leads to those very Additional Expenses, which stem from the child's disability (to which the non-monetary damage must be added).
This concludes the discussion of compensation for the parents for the period before the child reaches adulthood.
60.theafterchildhisshouldbegrantedfortheiroftheirchild,asunlikecase,hisdependenceuponthemcontinuestodisabilityduringthisaswell,andinfact,for the entire period of his life expectancy.Inofforthesedamages,thereispreventingtakingintoaccountlengthofperiodofhiswhere,tohischildcontinuestobedependentuponhisparentsasanadult,especiallyduetofactthatthereisnoabouttheparents'intocareforneedsoftheirchildrenwhoareuponthatdutyis
even manifest in law, in sections 4-5 of the Family Law Amendment Law (Support), 5719-1959. It is uncontroversial that had there been no negligence, the parents would not have to bear the expenses of support for their child after he reaches adulthood.
During the period of his adulthood, had it not been for his disability, the child would be expected to earn his living. To the extent that the disability detracts from his earning ability, his parents have the duty to sustain him and to supplement what he lacks. In other words: during the child's adulthood, his parents bear both the special expenses due to his disability and his regular living expenses, which he himself would have borne, were it not for his disability.
- Where the child is expected to earn money despite his disability, the amount of his expected earning – in other words, the relevant part of the average salary in the economy – must be subtracted from the compensation granted to his parents. We have already ruled that it should be assumed that a healthy minor, when reaching adulthood, would earn the average salary in the economy, and that this salary would be used for his sustenance, in other words: his living expenses and welfare. From the practical standpoint, the parents should be compensated for the period of the child's adulthood, for all the "Additional Expenses", which, in said period, are the regular living expenses and the special medical and assistance expenses. Only if the infant is expected to earn a certain percentage of the average salary is there a need to subtract this percentage from the compensation. De facto, in the usual case, in which the injured child continues to be in his parents' house or in the community, the compensation paid to his parents will not be different than the amount of compensation which would be paid to him himself if he had a cause of action, in the framework of which he would sue for earning losses.
- This will be demonstrated numerically:
Let us assume that the average salary in the economy is 10,000. Due to his disability, the child's earning ability is reduced by 50%, in other words, a loss of 5,000 has been caused him, and this amount would be paid to him if he had a cause of action of his own. Let us assume, in addition, that he is also entitled to additional medical and assistance expenses (in comparison to a healthy child) of 15,000. In total, the compensation he would receive in his own suit would be 20,000. Seeing as the child does not have a cause of action, and the cause of action is that of the parents, they are entitled, in the usual case, to compensation for all the additional expenses, that is: 15,000 for medical and assistance expenses, and in addition, the child's regular living expenses, which they have to bear due to the detraction from the child's earning ability, in other words: an additional 5,000. In total, the amount that the parents will receive is identical to the amount that the child would receive if he had a cause of action.
It should however be remembered that the compensation is always individual; there thus might be situations in which the compensation changes; for example, when dealing with a child who is expected to live in an institution, which certainly might influence his living expenses.
- For the sake of comparison: in most of the cases from states in the United States, the parents were granted compensation only for the Additional Expenses that
they must bear in order to care for their child which are due to his disability, and they were not compensated for the regular expenses involved in raising a child:
Although the question of damages has presented a difficult and troublesome problem to those courts which have considered wrongful birth claims, we align ourselves with the majority of jurisdictions which have limited the parents' recovery of damages to the extraordinary expenses - medical, hospital, institutional, educational and otherwise - which are necessary to properly manage and treat the congenital or genetic disorder. Siemieniec v. Lutheran Gen. Hosp., 117 Ill. 2d 230, 260, 512
N.E.2d 691, 706 (Ill. 1987).
Another case clarified (emphasis added):
Indeed, the central policy of all tort law is to place a person in a position nearly equivalent to what would have existed had the defendants' conduct not breached a duty owed to plaintiffs, thereby causing injury. In the context of wrongful birth, this means the situation that would have existed had the child actually been born in the state of health parents were led to believe would occur. Damaged are not gauged against the state of affairs that would have existed had the child never been born, because parents always assume the costs of healthy children born to them, even if unplanned. This policy can be fulfilled here only by allowing recovery of all future extraordinary expanses [the child] will incur. Kush v. Lloyd, 616 So. 2d 415, 424 (Fla, 1992).
The decisions of the American courts were based upon various reasons, including those detailed above. Thus, for example, it was held that if, in principle, the parents were entitled to compensation for all of the expenses of raising their child, as had it not been for the negligence he would never have entered the world and his parents would not be required to bear any expenses for him, the intangible benefits involved in the birth and raising of a child, including a child with disabilities, must be set off from that compensation. It was held that those benefits equal, at very least, the regular expenses involved in raising a child (Ramey v. Fassoulas, 414 So. 2d 198, 200-01 (Fla. App. 3d Dist. 1982)). It was further determined that casting the regular expenses involved in raising a child upon a third party is not proportionate to the fault of the negligent party and is contradictory to the idea that the primary and predominant duty to care for the needs of the child, whether wanted or not, is that of the parents (see: Rieck v. Medical Protective Co., 64 Wis. 2d 514, 518-19, 219 N.W.2d 242, 244-45 (Wis. 1974); Ramey, at p. 200). Last, it has been emphasized that in their decision to bring a child into the world, the parents necessarily agree, of their own volition, to bear the regular expenses of his upbringing, and thus it cannot be said that these expenses were caused by negligence (Clark v. Children’s Mem. Hosp., 955 N.E.2d 1065, 1083 (Ill. 2011)). On the other hand, a minority of US state courts charged expenses for all of the expenses of raising a child born due to the defendant's negligence, as had it not been for the negligence, the child would not have been born at all (Robak v. United States, 658 F.2d 471, 479 (7th Cir. 1981)(.
additional expenses. The English judgment in Parkinson v. St. James and Seacroft University Hospital NHS Trust explained:
A disabled child needs extra care and extra expenditure. He is deemed, on this analysis, to bring as much pleasure and as many advantages as does a normal healthy child. Frankly, in many cases, of which this may be one, this is much less likely. The additional stresses and strains can have seriously adverse effects upon the whole family, and not infrequently lead, as here, to the break up the parents' relationship and detriment to the other children. But we all know of cases where the whole family has been enriched by the presence of a disabled member and would not have things any other way. This analysis treats a disabled child as having exactly the same worth as a non-disabled child. It affords him the same dignity and status. It simply acknowledges that he costs more. (Parkinson v. St. James and Seacroft University Hospital NHS Trust  EWCA Civ 530).
Similarly, the courts in Canada follow the English system, and the compensation is granted only for the additional expenses stemming from his upbringing (Zhang v. Kan,  B.C.J. 164, 2003 BCSC 5 (Can); Dean Stretton, The Birth Torts: Damages for Wrongful Birth and Wrongful Life, 10 Deakin L.R. 319, 324 - 25, (2005)).
65.Thisaccordingtowhichtheparentsshouldbeonlyforadditionalexpenses–wasalsobytheofoftheMazza CommissionItwasinCommission Report inthisthat"theofforthewehavedecidedtoisthatthewhonegligentlythebirthachildexpressedrealhandicapwhowouldnotbeenbornhaditnotbeenforthishasthedutytobearthemonetaryin providing the special needs of the infant which stem from his disability added–E.R.).Asthepeoplewhoareresponsibleforfortheinfantandcareofhisneedshisandtheybeartheofthiscostde factotheoftheparentstoandreceivetocoverneedsoftheinfantduetohisfromthepartyforshouldbe(id, p. 60).
However, as noted, "the Additional Expenses" in the usual cases also increase during the child's period of adulthood, such that they include his regular living expenses, which his parents must bear. Whereas the child lacks earning capability, the "Additional Expenses" thus include, in the usual cases, the living expenses as well, which, lacking evidence showing otherwise, equal the average salary in the economy.
- To sum up: a party who, by his negligence, caused the birth of a child with disability, who would not have come into the world had it not been for that negligence, has the duty to bear the additional expenses involved in raising the child, expenses which stem from his negligence, which reflect the child's special needs due to his disability, in accordance with the circumstances of each given case and for the entire period of the child's life expectancy. This compensation shall include all the additional expenses needed in the particular case, including: medical expenses, third
party assistance, rehabilitation expenses, education expenses including ancillary expenses, housing expenses and mobility expenses. During the child's adulthood, and for the entire period of his life expectancy, his parents shall be entitled to compensation for his regular living expenses as well, to the extent that he lacks earning ability and there are no special circumstances negating that entitlement.
- Note, incidentally, that a different question arises where the cause of action is for "wrongful pregnancy" (or "wrongful conception"), where the parents wished to avoid bringing children into the world at all, even healthy children, and due to negligence in medical care that choice was denied them (see, e.g., CC (Jerusalem District Court) 1315/97 A. v. Kupat Cholim shel haHistadrut haKlalit shel haOvdim b'Yisrael, IsrDC 5763(2) 309 (2004); CC (Haifa Magistrates Court) 4503/06 A. v. the State of Israel (unpublished, 4 March 2012)). Discussion of actions such as these and the scope of compensatable damage is not necessary for our purposes, and I shall leave it for when it arises. Note, however, that in other legal systems in cases in which a disabled child is born as a result of wrongful pregnancy as well, compensation has been granted only for the Additional Expenses (see e.g. in England, the aforementioned Parkinson case). This result is correct a forteriori in our case, in which the pregnancy in and of itself was wanted, but the parents wanted a healthy child. In any case, as mentioned above, there is no need in the circumstances of these cases to express an opinion on the question what the proper compensation is in the case of unwanted pregnancy in our legal system.
Non Pecuniary Damage
- Customarily, psychological damage sued for in an action for wrongful birth is categorized as "pure" psychological damage, lacking physical damage to the claimants. This classification is not devoid of doubts (compare, e.g. the enlightening judgment of Baroness Hale in the Parkinson case). In any event, the psychological damage in the case before us is ancillary to pecuniary damage, so it in any case does not stand alone.
- Even if the psychological damage caused to the claimants before us is categorized as pure damage, the entitlement to compensation for pure psychological damage which is not ancillary to relevant physical injury (see: Eliezer Rivlin "Pitsui'im begin Nezek lo Muchashi u'begin Nezek lo Mamoni – Megamot Harchava" The Shamgar Volume – Part C 32 (2003)), was already recognized in CA 243/83 Jerusalem Municipality v. Gordon, 39(1) IsrSC 113 (1985), where negligence liability was determined for pure psychological damage caused to the party directly damaged; later, the status of "quasi-directly" damaged parties was recognized as equal to that of directly damaged parties (the Levy ruling). In that case, compensation was granted to parents suffering psychological damage due to the death of fetuses due to negligence; similarly, the entitlement of partners to compensation for psychological damage caused them due to the woman's unnecessary abortion caused by medical negligence was recognized (CA 398/99 Kupat haCholim shel haHistadrut haKlalit v. Dayan, 55(1) 765 (1999)).
- In cases of wrongful birth the psychological damage continues for the lifetimes of the parents (the claimants). It is not single-event damage. It is not damage that is caused over a short period. The parents must care for the child for the
rest of their lives. They are vulnerable to his suffering, and are entrusted with his welfare. They accompany his pain, his suffering day and night, and these become their pain and suffering. They direct their lifestyle in a way that will allow them to fulfill their responsibility for the child. Their life changes, at times completely. Activities that once seemed natural and easy to do become unbearably difficult. The need to care for the future of the child, with all their might, keeps them awake at night and drains their resources. This is continuous damage. It is different and separate from the violation of autonomy which is a single-event violation which takes place at the moment when the choice was denied them. The continuous and severe psychological damage thus requires large and significant compensation.
Violation of Autonomy
- The final question which requires our decision is the question of the relationship between the cause of action for wrongful birth and the cause of action for violation of autonomy, in the framework of the parents' action.
In Kadosh we extensively discussed the importance of the right to autonomy and the individual's right to sue for compensation due to violation of that right. It was again clarified that the right to autonomy is "the right of every individual to decide about his acts and desires according to his choices, and to act according to those choices" (the Da'aka ruling, at p. 570); this is a persons right "to write his life story" (the Abu Hana ruling, at p. 48). It was emphasized in Kadosh that "the individual's autonomy stands at the heart of human dignity. It is a right that constitutes a fundamental value in the Israeli legal system, and 'constitutes one of the central manifestations of the constitutional right of every person in Israel to dignity, entrenched in Basic Law: Human Dignity and Liberty' (the Da'aka ruling, at p. 571; HCJ 4330/93 Ganem v. Va'ad Mechoz Tel Aviv shel Lishkat Orchei haDin, 50(4) IsrSC 221, 233-234 (1996))"(par. 31 of my opinion).
Demarcation of the boundaries of the entitlement to compensation for violation of autonomy is carried out through demarcation of the violation which leads to entitlement to compensation:
"Only a violation in the heart of the right to choose, in "the 'inner penumbra' of the human right sanctifying autonomy (as stated in the Bruria Tsvi ruling) and on a substantial matter, will entitle the claimant to significant compensation. An example of such a violation can be found, as noted above, in medical care, "located in the inner penumbra of this right of every person to control his life", as "it might have a direct influence, and at times an irreversible one, both on his lifestyle and on his quality of life" (the Da'aka ruling, at p. 532). An additional example is a violation of a person's ability to weave his life story (the Abu Hana ruling). A demarcated definition of the injury that leads to entitlement to compensation will help the courts entrench the status of the right to autonomy, but whilst charging compensation only in the fitting cases "(the Kadosh ruling, at par. 39 of my opinion).
course, in an action for wrongful birth as well the violation of autonomy is likely to serve as compensatable damage. The question arises, what the relationship is between the head of damages of violation of autonomy and the other heads of damages in the parents' action.
In Kadosh I wrote that compensation for violation of autonomy is not granted to the damaged party "for the very violation of his constitutional right abstractly and in principle", but for "real result-based damage" caused him (in the words of the article of Yifat Biton "Ke'evim b'Eizor haKavod" Mishpat u'Mimshal 9 137, 145-146 (2005)(hereinafter: Biton)). These damages, which can be identified as "violation of feelings", include the feelings regarding "violation of dignity, psychological suffering, humiliation, shame, sorrow and insult, frustration, undermining of trust in others, undermining of one's view of oneself, and injury to the self assessment of the individual or his ability for self realization, both as an individual and as part of a group, and more (Biton, at p. 184). In order for damage for violation of autonomy to stand on its own –
Compensation for violation of autonomy can be sued for, even lacking other damage; in other cases it is possible to sue for such compensation in addition to or aggregation with bodily damage that has been caused, including in addition and aggregation to other non-pecuniary damage, in a situation of two separate kinds of damage. This is not novel, as the tortfeasor must compensate for all the damage he caused, and if he caused more than one kind of damage, he shall compensate for that which he caused. In that sense it is a factual and not a legal question" (Kadosh, par. 45 of my opinion).
This view derives from the recognition of violation of autonomy (to the extent that it is in the penumbra of the right and regards a substantial issue) as reflecting real and true damage. Such damage might come separately and differentiated from other damages, both pecuniary and non-pecuniary, because refraining from charging compensation for it would deviate from the principle of restitutio in integrum (and see also the opinion of the commission – the Commission Report, at p. 62). Of course, not in every case is there separation between the damage from violation of autonomy and other damage (for a survey of various possible cases in this context see: the Kadosh ruling, at par. 45 of my opinion). There might be overlapping between them. However, where separation is possible, and the violation of autonomy is an additional substantial violation in the penumbra of the right, negating additional compensation for it is like revoking the injured party's entitlement to compensation for any other head of damages (and see also the Commission Report, in which it was emphasized (on p. 62) that "the proposed arrangement cannot violate the rights of the parents to sue for compensation for the violation of their autonomous right to chose to continue or terminate the pregnancy, or their right to sue for compensation also for any other direct damage caused them, or some of them"; emphasis added). On this issue, compare the ruling that determines that if there is an action by dependants and an action by the estate, side by side, compensation should not be made only according to the sum in the claim for a greater amount, as the caselaw determined in the past; it must be examined whether there is a zone of overlap between the two actions, regarding which compensation should be made only once. If there is damage beyond the zone of overlap, then refraining from compensation for each of those damages will
lead to under-compensation (see: CA 4641/06 Menorah Chevra le'Bituach Ltd. V. Karkabi (19 December 2007); CA 2739/06 Dubitsky v Razkalla (1 June 2008)).
- Regarding the amount of compensation: like Justice E. Hayut, I too am of the opinion that compensation for the violation of autonomy should not be standard, but should rather be individual, taking into consideration the concrete violation and its circumstances (see: CA 10085/08 Tnuva Merkaz Shitufi l'Shivuk Totseret Chakla'it b'Yisrael v. the estate of Rabi, par. 40 of the judgment of Justice E. Hayut (yet unpublished, 4 December 2011)). Nonetheless, it has already been clarified that "since we are dealing with assessment of intangible damage, the courts will assess on the basis of the circumstances of the case and their life experience. In general it can be determined that to the extent that the information that was not relayed is more important, and to the extent that the harmed interest is closer to the penumbra of the right and affects it more significantly, so shall the compensation for the violation of autonomy increase (see on this issue the standards proposed by Justice Strasberg- Cohen in the Da'aka ruling for assessing the intangible damage that was caused to a person whose right to autonomy was violated during medical treatment, including: the type of information denied to the patient; the scope, quality and special importance of the information that was not relayed to the patient, as opposed to the information that was relayed to him; the patient's stance about and way of relating to the relaying of the medical information regarding him; and the result of the treatment that was carried out… (id, at pp. 619-621))" (the Kadosh ruling, par. 42 of my judgment).
In those cases in which the court is persuaded that a violation of the claimant's autonomy has occurred – one that touches upon the penumbra of the right, and on an important issue – it should grant fitting compensation that reflects the full severity of the violation (id, at par. 48 of my judgment. And see also CA 9187/02 Weinstein v. Bergman (yet unpublished, 16 June 2005); CA 9936/07 Ben David v. Antebi (yet unpublished, 22 February 2011)).
74.Theintheoftheofactionfor"wrongfullife",itwasinnopartinfluencedbytoprovideaproperfortheneedsofabornwithdefects,asaofinhisduringpregnancy.weightgiventothisinparties'anditdidnotmissourIndeed,areoftheopinionthattheofaction "wrongfullife"beintheofthetortofduetoandwithinourandduetothehurdleofprovingtheofortheofthecausallink.weareofopinionatrueforthelargeoftheofthecanbeintheofhiscauseofaction for birth".
75.Asabove,areentitledtofortheexpensesneededtotheandassistanceneedsoftheirchild,and tothetheir continues tobeupon duetohiswhenhetheyarealsotoforexpensestheybearinforhimduringperiodandfortheentireperiodoflifeexpectancy. Thisincludeshisregularexpenses,tothethathedoes
not cover them due to his disability, and lacking circumstances that negate said entitlement. Inter alia, a sufficient legal solution can also be found for the concern that the parents will pass away without ensuring that they make fitting arrangements for fulfillment of their disabled child's needs, in the framework of sections 56-57 of the Inheritance Law, 5725-1965, which regard maintenance payments from the estate. They determine as follows:
- If the bestower of inheritance is survived by a partner, children or parents, and they need maintenance, they are entitled to maintenance from the estate pursuant to the provisions of this law, whether in inheritance by law or inheritance by will.
57.(a) The rightto is –
(2) For the children of the bestower of inheritance – until the age of 18, for a disabled child – the entire period of his disability, for a child who is mentally ill – as long as he is mentally ill, and for a child with mental retardation – as per the meaning in the Welfare Law (Care for the Retarded), 5729-1969 [emphasis added – E.R.].
Thus, a broad solution is provided for the needs of the child due to his disability. Naturally, like in other cases arranged by tort law, the question of the ensuring of proper use of the compensation money might arise. This question is not unique to wrongful birth cases. De facto, there are various situations in which the needs of the child will not be sufficiently fulfilled via the tort action that his parents submit, but this result is unavoidable. Difficulty in ensuring the proper use of compensation that a person receives, even if he is an independent adult, exists due to the very fact that usually compensation is granted in advance and in one amount. In compensation law every injured party is presumed to plan his conduct in such a way that the compensation will offer him a proper and continuous solution for mitigating his damage in the future.
The Mazza Commission proposed that the legislature "authorize the court to include in its judgment instructions regarding the use of the compensation money, to the extent that the court sees fit to do so, in order to ensure the fulfillment of the needs of the infant. It is also proposed to determine in statute that the compensation intended to ensure the fulfillment of the needs of the infant shall not be considered part of the parents' property in a situation of bankruptcy; shall not be part of their estate; and shall not be the subject of lien, mortgage or assignment of right in any way" (the Commission Report, at p. 62). These proposals are very wise, not only for this cause of action, but also in a more general scope. I hope that the legislature will indeed heed the call, and that until then, the courts will develop the fitting mechanisms with the tools at their disposal.
President Barak's stance in the Zeitsov ruling. Nonetheless, it should be remembered that in practice, the requirement of causal link leads to a certain demarcation of the cause of action, as in the framework of both actions it must be proven that the disability would have led to a termination of pregnancy permitted by law.
Our task is not complete: in the framework of this decision of principle, from the outset we did not deal with the question of the specific liability of any of the defendants in the cases before us. These questions shall be decided by other panels, separately in each case.
President (emeritus) D. Beinisch:
I concur with the comprehensive judgment of my colleague the Deputy President E. Rivlin. The issue before us is one of the most difficult and complex ones, from the standpoints of law and values, and the moral and societal standpoints. This Court confronted this issue in the important judgment in CA 518/82 Zeitsov v. Katz, 40(2) IsrSC 85 (1986)(hereinafter: Zeitsov), and my colleague discussed it extensively. In that judgment the Court recognized the existence of a cause of action for a child that was born with a disability that was not diagnosed due to negligence in discovering the defect before conception or birth. It is important to note that the positions of the Justices of the majority in Zeitsov were of course not intended to detract from the status or rights of persons with disabilities; and in their various stances, nor did they detract from the view that recognizes the value of human life, which has always been a sacred value in Israeli law. The judgment in that case is an attempt to find a practical legal solution that might allow granting compensation to children and their parents, who must confront disabilities that at times involve great suffering and considerable monetary expenses. However, the two approaches that were adopted by the majority in Zeitsov raise a number of difficulties, which my colleague the Deputy President discussed in his judgment. The approach of Deputy President M. Ben-Porat in the Zeitsov case raises difficulty regarding the way damage is defined, and the approach of Justice (former title) A. Barak raises difficulty regarding the definition of the causal link between the negligence and the damage. Thus, after more than 25 years since the judgment in the Zetisov case was given, it can be said that its creative attempt to develop the causes of tort action has not yet reached fruition, and conceivably caselaw development of tort law on this issue will be possible in the future. I have been persuaded that at this time, that judgment does not provide a fitting solution for the difficulty involved in recognizing the cause of action of a child claiming that his birth (or his birth with a defect) is the damage that was caused to him. And indeed, the cases before us – with the variety of questions that arise in them – demonstrate more than anything else the difficulty involved in recognizing the cause of action for "wrongful life".
According to our societal views and values, every person – be his disabilities as they may – was born in [God's] image, and his life has value in and of itself, which must be honored. According to our moral view, it cannot be said that it would have been better for a person had he not been born. In legal garb, the meaning of this view is that the argument that a person's very life is damage that was caused to him cannot be recognized. The following words from the Mazza Commission Report on this issue are fitting:
The view that recognizes the value of the individual as a human being, and the sanctity of life as a value in and of itself, was assimilated into our law as part of an all inclusive moral view. The fundamental principles and values of our system constitute a source of inspiration for the interpretation of concepts that have "open and flexible membranes"; and "damage", as per its definition in the Civil Wrongs Ordinance, as detailed above, is one of the concepts that should be interpreted according to those principles and values. In other words: the question of recognition or non-recognition of the very birth of a disabled person as "damage" should be decided while taking into account legal policy considerations, according to which the competing values and interests are examined; and determining the balancing point between the private interests and the general public interest shall be influenced by the fundamental views of the legal system and in light of moral considerations. Our stance is that taking into account of those considerations leads to the conclusion that the position that sees "damage" in the very birth of a disabled person should not be recognized (see the report of the Public Commission on the subject of "Wrongful Birth", at p. 46).
Note further that I have been persuaded by the position of my colleague the Deputy President that recognition of the cause of action of the parents for "wrongful birth" will allow granting compensation that fulfills a significant part, and possibly most, of the child's needs; it may be appropriate to broaden the solutions by alternative arrangements as recommended by the public commission, but that issue must be examined outside the framework of this judgment.
Thus, I concur with the judgment of my colleague the Deputy President, which seems, at the present time, to provide a consistent answer, found with the framework of accepted tort law, to the questions that arose before us, and even presents practical solutions to difficulties that arise in actions of this type. Nonetheless, this judgment too does not constitute the end of the discussion, and it appears that even if additional creativity is called for in developing causes of action regarding lack of early discovery of defects in a fetus, the time is not yet ripe for that. Furthermore, the questions that will arise in the parents' actions for wrongful birth, part of which were hinted at by my colleague in his judgment, will certainly engage the courts again in the future.
President A. Grunis:
I concur in the judgment of my colleague, Deputy President E. Rivlin.
Justice M. Naor:
- Regarding the transitional provision and par. 16 of the opinion of my colleague Justice E. Rubinstein: in my opinion we should not decide, in the framework of the transitional provision in the case before us, the question what the fate should be of an action of an infant which has not yet been submitted, regarding which the limitations period has, prima facie, expired. The correct parties regarding that question are not before us. We shall cross the bridges when we reach them.
Justice E. Arbel
1.The of DeputyPresidentE.Rivlin isain theissue thetortofbirth,whichittwoseparatecausesofaction,causeofofthe"wrongfulandthecauseofofparents,"wrongfulbirth".dealsquestionsofcentral,ofwhichthefromthelife"ofraisingtheoftheofversusalifeofandaoflifeaofdeath.Hereinitsquestionwhetherweasjudgescanwhethertherearerareastheybe,inwhichitisbettertolivethanitistoliveaofsuffering,orinthewordsofBarak,adefectedlife.Mytheofpublicthatdonotsupport"wrongfullife"causeofaction,andtheinvariousIconcurinopinioninoftheseconsiderations,causeofactionfor"wrongfullife"shouldnotbeBeyondtheintheframeworkofthisofthethatdefiningthelifeoftheevenifitisasalifewhichwouldpreferably–forinfant–neverhaveoccurredissanctity of and dignity.
- I join my colleague's determination that the need to provide a solution to the medical, rehabilitation and assistance needs of the child can be found in the framework of his parents' action for "wrongful birth", which does not raise the difficulties of law and principle involved in recognizing the child's cause of action. The parents are the parties that are directly injured by the fact that their child was born due to negligence. His birth necessarily bears injury to the parents. I agree with my colleague's conclusion that in this case the parents have the right to choose not to bring into the world a child with disability, via legal abortion permissible by law. This determination can be made without entering into the moral questions involved in the parents' choice to refrain from raising a child with disability.
3.Iwas notsurehow todecidethe issueof proof ofthecausallinkina "wrongfulaction.Intoprovetheacausalinsuchacauseofitbethatwouldhavetopregnancyhadthefactsthedefectthefetusbeenknown.Thisissuenoitfurtherthatitnotforthewouldhavechosentothepregnancy.Theasithasalreadyariseninthepast,iswhetherofsuchproofshouldnotbewaived.colleaguealsoagreesthe standingonthewitnessstandandtestifyingthattheywouldhavechosentothepregnancy,iftheyhadtheraisesThereisinprovingandawherewitha whenthey already theresult.AlthoughthisisnotuniquetobirthIamofthethatthethatsuchtheirCan a truly looking whetherhe would have abortedthe isnowlivingandchildheisraising?Canapersonwhathewouldhavedonehadhefoundout,whenthechildwasstillafetus,aboutthefetus’sinactionsfor"wrongfultheisintensified,asdiscussedfortwoadditionalreasons.First,themoralbywhothattheywouldhavechosentoabortchildthatisnowlivingandloved,isathatharmeventhechildifheistotheatpointoranotherinlife.intheofpublicpolicyduetotheconcernthataofsuchproofwouldburdencertainofwhichthereisathattheydonottohaveduetothethatwouldharmparentsareto a child.
- I examined whether it would not be correct to adopt the approach according to which proof of causal link should be waived (CC (Jerusalem District Court) 3198/01
A. v. the Jerusalem Municipality (unpublished, 12 May 2008), Judge Drori; CC (Tel Aviv District Court) 1226/99 A.L. v. Yaniv (unpublished, 29 March 2005), Judge Benyamini). Indeed, this approach constitutes a certain deviation from the regular path of tort law. Nonetheless, in my opinion this approach is likely to be legitimate and fitting for the subject matter at hand, due to considerations of public policy and in light of the uniqueness and complexity of this cause of action. Thus, for example, the complexity of the "wrongful birth" cause of action served the Deputy President in determining that the defendants should be charged to pay the disabled child’s additional expenses only, and not all the expenses of raising him. In addition, I find it doubtful that such a requirement would advance the discovery of the truth, and whether it can advance justice in a specific case, due to the noted difficulty in proving what the parent would have done had he known of the defect his fetus suffers from, whereas it is doubtful if he himself knows clearly how he would have acted. However, I ultimately decided to concur in the opinion of my colleague, both due to the desire to walk along the path of tort law, and due to my colleague's softening of the requirement in two ways: first, in determining that by proving the position of the pregnancy-termination committee to allow an abortion in the certain case, a refutable presumption arises regarding the parents' stance about having an abortion; and second, in determining that refuting this presumption shall not be done merely
through general information such as sectorial or religious affiliation. I add that in my opinion, courts hearing "wrongful birth" cases must act on this issue in a very cautious and sensitive fashion, giving weight to the individual, who is not necessarily obligated by the general positions of the sector to which he belongs; the courts must also act with a certain flexibility, to the extent possible, in implementing this requirement in the framework of a proof of the causal link. We are dealing with negligence law, which should be adapted to the ever changing and difficult reality of life.
As aforementioned, I concur in the judgment of the Deputy President.
Justice S. Joubran:
I concur in the circumspective and enlightening judgment of my colleague, Deputy President E. Rivlin.
Justice E. Rubinstein
- The issue before us touches upon philosophical questions regarding human existence, possibly similar to the house of Shamai and the house of Hillel, who disputed "for two and a half years" the question whether "it is better for a person not to have been created than to have been created" (Babylonian Talmud, Eruvin 13b); questions which are philosophically difficult, legally difficult, and difficult from a human standpoint. In the annals of the sages a decision was reached: "counted and decided: it is easier for a person not to have been created than to have been created; now that he has been created, he must examine his deeds. And there are those who
say: he must reckon his deeds" (id; and see Rashi, id; Mesilat Yesharim (Rabbi Moshe Chaim Luzzato (Italy-Holland-Eretz Yisrael, the 18th century) chapter 3); the thrust of this is that having been created, he must search for good and expunge evil, with constant self examination. The subject underdiscussion is more limited than the existential question posed above, which relates to the life of any person, and it relates to a person who entered the world with severe defects; it is fundamentally a situation in which the parents declare that had they known ex ante what the condition of their infant would be they would have refrained from continuing the pregnancy, and society confirms (via the provisions of section 316 of the Penal Code, 5737-1977) that this is a legitimate choice. Nonetheless, questions from the world of values, philosophy, morals and religion arise, integrated with questions the results of which are financial – such that the legal decision makes (or might make) a moral choice as well; thus the agony in making it.
- In this context, it is my opinion that a different description of human existence actually characterizes this judgment. The verse "and G-d made man" (Genesis 2:7) is interpreted in the Talmud as follows: "woe is me because of my creator, woe is me because of my evil inclination" (Babylonian Talmud, Brachot 61a): approving the "wrongful life" cause of action raises complex theoretical legal difficulties, which my colleague the Deputy President (following what is accepted in other countries) wishes to avoid, and thus his decision. This is also the approach of the majority of the "Public Commission on the Subject of Wrongful Birth" (hereinafter the Mazza Commission) in the important and enlightening report it wrote (the minority opinion is also
important), which in my opinion has a special role in our decision. On the other hand, annulment of the cause of action, as proposed by my colleague, even if that comes alongside an expanded cause of action for "wrongful birth", is not simple, primarily on the practical level. Expansion of the cause of action for wrongful birth in order to provide a solution for the practical difficulties, or some of them, as can be seen in the opinion of my colleague the Deputy President, is also liable to raise various legal difficulties, some of which I shall touch upon below.
3.Regardingforon the legal plane,inthetheinthecauseoftoadditional(theexpensesthethethattheraisingofachild),althoughregularalsobeabletobecausallylinkedtotheact(see56-57),mycolleaguetheDeputynotesthat"theresultsofthebirthofthechildmustalsobe(par.weagainfindtheofexistence,wewishedtoavoiddoing.Furthermore,inordertoreacharesultwhichis,intheofthecase,just (toextentcolleagueiswillingtoparentsoftheinfantfortheirexpenses the entire period of [the infant's] life expectancy"(par.60,–eventhoughfromthepracticallawstandpoint,itthattoitistheactiontofortheirsupportoftheinfant,itcouldhavebeentotheoftheirlifetotheintheMazza Commissionthatcanbebasedupontheparentspennytheirinordertoensureofthe needs ofthe infant their p. 64).
4.Thatisalsothecaseregardingidentificationlivingexpenses(the"regularexpenses")oftheinfantwhenhehasanadult,asaverage salary in the economy (inthecaseoflossofearningability)–agenerallyexpectedapersonwhowasbyaact, not ofthe expenses aparty bears in tosupport(althoughinMazza Commission wasalsoofthisopinion,p.61).Incontext,itisdoubtfulineyesiftheforsupportpursuantto4oftheLawLaw(Support),(towhichDeputyinpar.ortosectionofInheritanceLaw,5725-1965(towhichheinpar.75)issalaryinthe(forsupportratesCA4480/93A. v. B.,48(3)IsrSC461;PY(AL),5725-1965(part2,37-38).IIamnot,heaven forbid,sayingthatantheintheseissuesshouldbetaken.oppositeisthecase–theofwhichattheof theofmytheDeputyPresident(aswellastheopinionintheMazza CommissionareIacceptthemaswell;however,thearisingfromadaptationoftheparents'causeofactionfor"wrongfultorealityincauseofaction"wrongfullife"should not be ignored.
5.On the practical plane, myinter aliaquestionitcanbeensuredthattheparents' tothebirthcause
of action will indeed ensure the future of the infant (see par. 75). These questions are difficult to solve, as what will be done, for example, when the parents are irresponsible, or big spenders, and leave the infant with nothing by spending all the money. I shall say at the outset, that in my opinion there is a sufficient legal basis for determining arrangements that will safeguard this interest; in addition, because if the parents' entitlement stems from various duties that the law casts upon them (see, e.g., par. 60 of the opinion of the Deputy President) it is not unreasonable to connect the compensation and these duties (in this context as well the majority opinion in the Mazza Commission proposed unique arrangements, see p. 62). An additional significant difficulty, at least on the level of principle, relates to an infant who has no parents to sue on his behalf (an issue which the majority opinion in the Mazza Commission discussed on p. 60), or when the parents themselves go bankrupt, etc.
6.InotherthetheoftheDeputydespitetheittoensurefutureoftheinfanthisparents'action,–despitetheofcourse–leadtointhewhotodaywouldbeentitledtowillbewithnothing;yetistheandthefromitareexpenses(evenifwefromusingtheofLetusthatJusticesoftheinZeitsov (CA518/82Zeitsov v. Katz,40(2)IsrSC85)wereawareofthevariousinthepresented,yettheytoawhich,ifitensuresthecausedas a result of the negligent care by the doctor,aspertheofthisintortwillbeforseepar.42oftheminorityintheMazza CommissionbyMr.Posner.
- In this context, the position of (then) Justice Barak in Zeitsov proposes a compensation mechanism which is clear and relatively simple to implement, which avoids entering into complex ethical dilemmas (see also A. AZAR & A. NURENBERG, RASHLANUT REFU'IT (MEDICAL MALPRACTICE)(2nd ed., 5760) 287); however, as noted above, it entails legal difficulties (see Deputy President Ben-Porat in Zeitsov, at
p. 105; see also R. Perry "L'hiyot o lo L'hiyot: ha'Im Zo haShe'elah? Tviot Nezikin begin 'Chayim b'Avla' keTa'ut Konseptualit"(To Live or Not to Live – Is that the Question – Tort Actions by Reason of Wrongful Life as a Conceptual Mistake) 33 MISHPATIM (5763) 507, 559-560; A. Shapira, "haZchut lo leHivaled bePgam" (The Right to be Born with a Defect) in DILEMMOT B'ETIKA REFU'IT (DILEMMAS IN MEDICAL ETHICS) (R. Cohen-Almagor ed., 5762) 235, 248). I will not deny that I was taken by the thought of proposing that we continue down that paved path, as per Justice Barak, with certain amendments and despite its theoretical difficulties, until the subject is fully arranged [in legislation]. As long as the subject has not received a full arrangement, we replace a construct with theoretical difficulties but practical validity, with a construct which does not have such theoretical difficulties, but raises practical questions, as mentioned above. The Justices that heard Zeitsov a bit more than a quarter of a century ago knew that they face a difficult mission; but they wished to practically assist those whose fate was bitter, where negligence had occurred, even if the very creation of a fetus with defects was not at the hands of the doctor but by "the dealer of life to all living creatures" (in the words of the hymn for Rosh haShana and Yom Kippur).
8.thecreatedtheinZeitsov,thelackofinofthecourts,inter alia regardingthebetweentheopinionsofDeputyPresidentBen-PoratandBarakinZeitsov –requiresandanditisnotfornoreasonthatwedealing,inwithalargeofcasesthatAsearlyas this noted:
"a district court judge hearing an action like this stands before a number of possibilities… in each of the cases he will not deviate from the provisions of sec. 20(b) of Basic Law: Adjudication, which determines that 'a ruling of the Supreme Court obligates every court, except the Supreme Court'" (CA 913/91 Azoulai v. The State of Israel (unpublished) par. 3 – Justice Maltz; see also CA 119/05 Amin v. The State of Israel (unpublished))."
A generation has passed since the Zeitsov ruling was handed down, and as the members of the Mazza Commission noted: "the lack of decision, as aforementioned, has left the legal arena wide open" (p. 17); this situation, in which the fate of an action depends upon the decision of the judge – it may not be superfluous to note, the random judge – before whom the case is heard "according to his opinions and worldview" (in the words of the commission on p. 17), is hard to accept. Complaints against it were also heard from attorneys who deal in the field during the hearing before us (on 31 January 2012); and I will not refrain from mentioning here that the opinions supporting confirmation of the stance of Judge Barak in Zeitsov were usually heard – before us and in the Mazza Commission – from lawyers who generally represent claimants. Indeed, the majority opinion in the Mazza Commission proposed "as a first and preferred possibility" (p. 60) to create, in legislation, a social arrangement that would ensure fulfillment of the needs of those born with defects that cause them functional disability, and of course there would be much blessing in such an arrangement; it further proposed, as an alternative, a legislative torts arrangement, and there is much positive about that as well. However, as a court that hears tort cases according to the existing law, I fear that there is no evading determination of a caselaw rule in tort law, despite the existing difficulties that accompany each of the alternatives, until legislation of one kind or another is passed. And I call upon a sensitive and conscientious Israeli legislature to reach it as soon as possible.
- Ultimately, I saw fit to concur, in principle, in the well reasoned decision of my colleague the Deputy President, consisting, at this time, of the part regarding legal principles. I do so whilst pointing out the difficulties and calling upon the legislature to speak. It is an open-eyed decision, aware of the disadvantages and advantages of each of the alternatives, wishing – trying hard – to ensure that basing one's opinion on "the regular legal tort logic" (the purpose of which is also avoiding the type of difficulties in theory and in result found in the various opinions of Zeitsov) does not lead to a practical result which is not just. I go this way also because the stance of my colleague is in line with the opinion of the majority of the members of the Mazza Commission regarding annulment of the "wrongful life" cause of action, and with the caselaw of the courts of the Common Law states (as the commission surveyed in its report, and as my colleague surveyed in his opinion). The moral message that arises from my colleague's decision – both regarding the sanctity of life and regarding treatment of persons with disability – also supports adopting it. It is also in line (as presented briefly below) with what can possibly be defined as the position of Jewish
Law, our legal heritage. The position that arises from our decision is that we do not leave people with disability in the category of "it would be easier for him had he not been created"; we must honor their needs and attempt to fulfill them, without a label of societal rejection in the form of "it would be easier for him had he not been created", but rather while treating them as desirable human beings.
"Better than both is the one who has not yet been" (Ecclesiastes 4:3)
- Recognizing the cause of action for "wrongful life" requires, as aforementioned, discussion of weighty moral questions, the answers to which might be able to be found "in the area of philosophy – morality – theology" (in an analogy to the words of Justice Goldberg in Zeitsov, p. 128). Indeed, in the literature of Jewish law we also find positions – based on a religious worldview – according to which for a very defected infant, whose life expectancy is most short, "it is better for him that he was born than had he not been born at all, as those who are born enter the next world" (see the IGROT MOSHE responsa (Rabbi Moshe Feinstein, Russia-USA, 20th century) Even HaEzer first part chapter 62); there is, however, among important religious authorities also broad and significant attention given (in the context of discussion of termination of pregnancy) to the life of suffering to which such an infant, and to a great extent those who closely surround him, are condemned:
"Is there need, sorrow, and pain, greater than that under discussion, which will be caused to the mother to whom such a creation is born, one who is all suffering and pain, and whose death is certain within a number of years, and the eyes of the parents see but their hands cannot relieve him? (and it is clear that if this child is taken to a special institution and the parents will not be given access until his death it makes no difference and does not detract from the aforementioned). Added to this are the tortuous and painful contortions of the child with the defect. Thus, if termination of the pregnancy is to be allowed according to Jewish Law due to great need and due to pain and suffering, it seems that this is the most classic case that should be allowed" (TSITS ELIEZER responsa (Rabbi Eliezer
Waldenberg, Israel, 20th century) part 13 chapter 102).
The reality of human existence also brings forth cases in which life is not short, but rather continues, without hope, for decades, with all the suffering involved, at times especially to the parents, as the child does not communicate. Indeed, many pens broke in Jewish law attempting to clarify these questions with a forward looking glance (particularly regarding abortions; see, for example, Rabbi E. Lichtenstein "Hapalot Malachutiot – Heibetei Halacha" (Artificial Abortion – Halakhic Aspects), 21 TCHUMIN (5761) 93). The majority opinion in the Mazza Commission included discussion of a number of known sources relating to the question whether life is worth living, for example the words of King Solomon "and I thought the dead, who have already died, more fortunate than the living, who are still alive" (Ecclesiastes 4:2), and the words of Jonah the prophet, who wished to die and said "it is better for me to die than to live" (Jonah 4:8), although, according to their opinion, "there is no doubt that these statements relate to moral and theological aspects only" (p. 65), and I already discussed above the differentiation between the philosophical question and the situations which are before us for decision. The question when "death shall be preferred to life" (Jeremiah 8:3), or when to "long for death but it does not come, and
dig for it more than for hidden treasures" (Job 3:21), is a question which has not been decided; however, life is "heritage from the Almighty on high" (id, 31:2; see M. Greenberg "Erech haChayim baMikra" (The Value of Life in the Bible) in KEDUSHAT HACHAYIM VACHERUF HANEFESH: KOVETS MA'AMARIM LEZICHRO SHEL SEGEN AMIR YEKUTIEL (THE SANCTITY OF LIFE AND MARTRYDOM – COLLECTION OF ARTICLES DEDICATED TO MEMORY OF LT. ARNON YEKUTIEL) (Y. Gafni & E. Ravitsky eds, 5753)
35). For example, there are those ill with debilitating disease whose life is not really a life, and who expect to be put out of their misery, and there are those who turn the depths of suffering into a lever for creative activity (see the enlightening and touching writings of Dr. Rachamim Melamed-Cohen, a person with ALS who creates like an ever swelling spring).
- The stories of the Bible and additional stories appearing in later sources teach that life is not always preferable to nonexistence: thus, for example, the words of King Saul to his porter "draw your sword and thrust me through with it, so that these uncircumcised may not come and thrust me through, and abuse me" (1 Samuel 31:4); or the story of the woman who "grew very old" and said to one of the sages of the Mishna: "I have grown too old and from now on my life is that of disgrace, I do not taste food or drink and I wish to leave the world" (YALKUT SHIMONI Dvarim chap. 11 Remez 871). Note that these acts served halachic authorities in discussion of modern questions regarding lengthening and shortening life (see, respectively, Rabbi Y. Zilberstein "Matan Morphium le'Choleh Sofani haSovel miChenek"(Giving Morphium to a Terminal Payment Suffering from Asphyxia) ASIA 15 (5757) 52; Rabbi Y. Zilberstein, in TZOHAR: KOVETS TORANI MERKAZI C (5758) 218). Then, as now, in Jewish law as in Western law, the considerations are well known, and the dilemmas are difficult.
12.itisstillappropriatetocomparingfilledwithtoaandlife,andasitbe,withaofnonexistence.Thatisthewhenwithathatisforof"theextentofthe"bottomline"ofistoamonetaryIn-depthoftheofdiscussing thosequestionscaninmyopinionbefoundinthewordsofthe 10a) King Hezekiah,whofromprocreatingbecauseforesawhiswouldbeevil(theevilMenashe).Inthetells"whatbusinessofyoursarehiddenoftheandofchoiceinsuchitwassaidthat"asoulisnothisproperty,propertyoftheLord,asitiswritten(Ezekiellivesare(theofthe(RabbiDavidbenthe16ofS18,6).ifJewishlawistothatincasesitispreferabletoavoidthatiswithhightoleadtoofdefectedthewordsofprophetaclearthepossibilityofdiscussingasituationoftoaofexistence,asasit
is, and their conclusion that law cannot be decided on the issue. I add that those words – regarding the hidden ways of the creator of the world – are used in religious philosophy in a completely different context as well, regarding ungraspable historical phenomena like the holocaust.
- Compensation in Torts for Birth of Fetus with Defects), TCHUMIN 32 (5772) 222), and the problem of an action on the basis of the cause of action for "wrongful life" was raised: "according to the halacha there should be no action by the minor" – as opposed to his parents' action – "who was born due to a tort, neither against his parents nor against a doctor who gave his mother consultation or diagnosis when she was pregnant" (VIDAL, p. 231). However, the halachic sources referred to in these works may support the conclusion of Dr. Michael Wigoda:
"The truth should be said, that the classic sources of Jewish law do not deal with this issue" (thus, in his memorandum submitted to the Mazza Commission with the title "Reflections upon 'Wrongful Birth' in light of the Sources of Jewish law").
It can also be understood why: the formulation of tort actions like those before us is the fruit of the modern medical and legal age, in which what was previously in the realm of heavenly secrets and fate, can now be predicted and decoded by tools of medicine and genetics. That does not exempt modern [Jewish law] authorities from dealing with it.
Epilogue and Practical Comments
14.Thethatcolleaguetheexpansivelygoesalongwaytowardreasoned,andjustoftheandlegalbeforeus.However,incertainregards,thewhichthecourtscontinuetopavetothecasesthatbebroughtusisstilllong(andmyalsothat).TheintheMazza Commission withadditionalprovisionswhichshouldbeintortAttheofthem liesthewhichlies atofopinion:thatapartofthefortheparentsislinkedtotheburdensomeexpensesofensuringcareforhim,anditsistoallowthemtopaytheminawaythatwillcondition,tothepossible(anditbeabletobesaid,toallowthemtotheirduties theinfant).relationswithinthediscussedneedtothattheisusedfortheoftherelationstheandothers,thediscussedneedtothemoneyagainstthirdsuchcreditorsinbankruptcy(p.62).situationinwhichtheinfantdoesnothavewhowillsueinhisadditionalwhich of theMazza Commission discussed.
answer to these questions – at least to part of them – in the Mazza Commission report, and that circumspective legal document should be before the eyes of those hearing such cases. In may be, that the solution to them will resemble relocating the theoretical difficulties from the discussion of the cause of action to a discussion on translating the expanded cause of action into practice. However, the question of the cause of action is the one which is before us, and it is presumed that its translation into practice will find an appropriate solution in the future. The majority opinion in the Mazza Commission noted:
"The question is whether such an arrangement can be reached, to the extent that it is found appropriate, by judicial ruling as well, is a matter of the decision of the Supreme Court."
Although I am, as aforementioned, of the opinion that there should be a legislative arrangement of the entire issue, and I hope that the call to the legislature will fall on attentive ears, whether in a social scheme (which, in its entirety, would not be before us) or, at least, a legislative arrangement of a complete and detailed tort scheme; the courts have a duty to ensure that the annulment of the wrongful life cause of action prior to enactment of a circumspective scheme in legislation will not derogate from their primary duty – to do justice within the framework of the law. The path that has been determined passes through the parents; the courts have a duty to ensure, in every single case, that the benefit reaches the infant and is earmarked for the infant, and not for other purposes.
16.Regardingtransitionalprovisionsbycolleagues,I amafraidthataistoininwhichnoactionwasbytheparents,underthethatinthefutureafterclarificationofthecondition)anactionwouldbebyinfant,theoftheZeitsov rulingtoofitanother,andrelying uponit.toaperiodofyearsforthat.provisionthesafeguardspendingcasesinactionswerenotbybutitdoesnotsafeguardhaveyetiftheyearparents expired(asopposedtothetwentyfiveyears),aclaimthatactionisbarredduetoberaised.ThatmayhaveanadditionalconsiderationinfavorofleaningtowardleavingZeitsov standingHowever,Iat least theofthisshallapply,tocasesinwhichanactionwastheforonefromthedateoftheUnfortunatelymyareinthusIonlyhopethatthefindawaytothehasbeenof(to they inthe of justice.
starting with traffic court, and reaching where he has. His contribution covers all areas of the law, and there is no valley in which he did not stake a claim. The judgment he chose for his retirement day is characteristic of the central field of his judicial legacy, the field of torts, and within it medical negligence. For many future years the mark which Justice Rivlin has made on all branches of tort law, from traffic accident law, regarding which he also wrote a fundamental book, to the complex and sensitive issue decided today, will accompany Israeli adjudication. According to the sages, the existence of fair tort law – relations between man and his fellow (Babylonian Talmud Baba Kama 30a) – is among the foundations of just human society. In his judicial work, Justice Rivlin contributed to that. I wish him, now that he has reached retirement age, that "in old age they still produce fruit; they are always green and full of sap" (Psalms 92:14).
Decided according to the opinion of the Deputy President E. Rivlin.
The result of the judgment – to the extent that it regards the annulment of the cause of action of the infant – shall not apply to pending cases (including cases before us) in which an action was not submitted by the parents. Justice E. Rubinstein was of the opinion that the result of the judgment should not be applied for one year from today, and Justice M. Naor notes that the question of the law regarding a claim on the part of an infant which has not yet been submitted should not be decided in the framework of a transitional provision in the case before us.
Given today, 7 Sivan 5772 (28 May 2012).