Limits of Private Law
Enriching legal dogmatics
In 2005 the Dutch Supreme Court decided a wrongful life case.2 This case concerned a woman who consulted her midwife during her pregnancy because there had been two cases of handicaps in her husband’s family, due to chromosomal disorder. The midwife did not think it necessary to investigate the matter any further. This was later considered a professional failure with dramatic effects. When born, baby Kelly turned out to have serious mental and physical handicaps from which she suffered severely. The parents claimed damage – both on their own accord and in Kelly’s name – and their claims were sustained by both the court of appeal and the Supreme Court. The Supreme Court not only considered the strictly legal issues but also considered moral and pragmatic arguments that had been put forward against such so-called ‘wrongful life claims’. Firstly, there is the moral opposition that sustaining these claims violates the principle regarding the dignity of human life, since it acknowledges that not being born is preferable to living in a condition like hers. Secondly, there is the pragmatic argument that sustaining claims like this will tempt doctors to practice ‘defensive medicine’ to avoid serious risk. Both arguments were carefully examined by the court and subsequently rejected. What does the Supreme Court in fact do here? Does it call out or explain the law to us? Or does it exceed its limits by elaborating on principles and policies, taking into account the moral grounds and the possible consequences of the ruling itself? In both directions the question arises: what constitutes the limits of private law?