Title: A critical disability theory analysis of wrongful life/birth actions in Israel

Authors: Nili Karako-Eyal

Addresses: The College of Management, Academic Studies, Haim Striks School of Law, 7 Yitzhak Rabin Blvd., Rishon LeZion 7502501, Israel

Abstract: Wrongful life/birth actions raise difficult questions. The Israeli Supreme Court of Justice's recent ruling in the case of Hamer (2012) reflects these difficulties. The court decided that wrongful life actions should not be admitted. By contrast, wrongful birth actions were approved. This paper offers a critical disability theory analysis of the decision in Hamer. The author claims that the court's refusal to acknowledge wrongful life actions constitutes an important positive legal narrative. Nevertheless, the judicial narrative provided in other parts of the decision makes only a marginal contribution to the positive social structuring of disability. Therefore, the author suggests a new approach that is based on the parents' right to autonomy. The author claims that this position does not involve negative connotation towards people with disabilities and enable the court to compensate the parents for the damages they suffered.

Keywords: Hamer decision; disabilities; critical disability theory; wrongful life actions; wrongful birth actions; autonomy; torts; private law; Israel; disability social structuring; parental rights; right to autonomy; parental compensation; damages.

DOI: 10.1504/IJPL.2013.054770

International Journal of Private Law, 2013 Vol.6 No.3, pp.289 - 302

Published online: 29 Nov 2013 *

Full-text access for editors Full-text access for subscribers Purchase this article Comment on this article