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

• Main Author: Ivo Giesen
• Format: Article
• Language: English
• Published: Utrecht University School of Law 2012-05-01
• Series: Utrecht Law Review
• Subjects: wrongful life; comparative law; tort law; policy decisions
• Online Access: http://www.utrechtlawreview.org/articles/10.18352/ulr.194/

In analysing 'wrongful life' cases, comparative law is used extensively. This article examines these wrongful life cases, especially in light of the contradicting outcomes in different jurisdictions across the world, with the Dutch Kelly case and the South African decision in Stewart v Botha as its main examples. I will test the hypothesis that it is not so much the outcomes and (more importantly) the arguments found elsewhere through the comparative law method that are decisive in highly debated cases like those concerning wrongful life, but that instead it is something else that decides the issue, something I would define as the cultural background of, or the legal policies within a tort law system.