My instinct would be "no" but today's Court of Appeal decision in Leek v. Vaidyanathan, 2011 ONCA 46 is careful to leave the issue open.
The Court holds:
[3] The pure question of law raised by the motion is whether a woman can ever be required to mitigate her claim for damages in a wrongful birth action by having an abortion. This is an important issue of law, raising significant policy considerations, and such questions are normally better determined on a full factual record after trial, where the judge has been able to make findings that form the basis for the legal analysis and conclusions: see PDC 3 Limited Partnership v. Bregman + Hamann Architects (2001), 52 O.R. (3d) 533, at para. 11; Haskett v. Equifax Canada Inc. (2003), 63 O.R. (3d) 577, at para. 24
2 comments:
How can a woman sue for wrongful birth if, before she gives birth, she knows there are issues with the child she does want want to deal with? Or if knowing, she aborts, what birth happened? If she is morally against abortion then the birth can't really be wrongful, can it, if she would carry to term of her own volition regardless of the information she might have?
Our laws regarding pregnancy, birth, and abortion make no sense at all.
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