As recent Ontario decisions demonstrate, Canadian courts, together with much of the common law world, continue to grapple with “wrongful life” claims in an incomplete and even confused manner. While the courts continue to reject claims for wrongful life, judicial reasoning in recent decisions such as that of the Ontario Court of Appeal in Bovingdon v. Hergott reveals the absence of a clear and consistent rationale to justify the continued rejection of wrongful life claims. The Bovingdon decision is of particular interest and concern since it leaves the door open to the possibility of a sustainable wrongful life claim without setting out any clear set of principles to determine whether such claims would, or ought to be, recognized. In the end, we are left with a superficial and thus potentially vulnerable line of judicial reasoning. While affirming that the physician owes a duty of care to the mother that is not co-extensive to the children, the court in Bovingdon nevertheless strained to leave the door open for courts in the future to recognize wrongful life claims.
The Advocates' Quarterly, Volume 34, Number 2, April 2008