Down child case referred back to high court

The Constitutional Court delivered what's being described as a “momentous judgment”.

FILE: The Constitutional Court has delivered what's being described as a "momentous" judgment in a case involving claims of negligence relating to a prenatal scan and a mother's choice to abort her child. Picture: Supplied

JOHANNESBURG - The Constitutional Court on Thursday delivered what's being described as a "momentous judgment" in a case involving claims of negligence relating to a prenatal scan and a mother's choice to abort her child.

The highest court in the land referred the case back to the Western Cape High Court where the merits will now be argued.

The mother, who launched the legal action on behalf of her child, hopes to sue the Fetal Assessment Centre for damages because it allegedly failed to warn her of a high-risk that her child will be born with Down Syndrome.

The mother, known only as H, had her case thrown out of court on a legal technicality because the application was done on behalf of her child and not her, the adult.

The case turns on the mother's right to abort a child if the risk of disability is high and whether the law should allow a child to claim compensation.

The mother's lawyer, Romany Sutherland, says the case is precedent-setting.

"It's definitely opened up quite a few doors and this sort of argument has gained momentum internationally."

The Johannesburg court granted the mother leave to appeal, giving her the opportunity to present her case in full.