Browsing by Author "Thomas, C. M."

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    Claims for wrongful pregnancy and child rearing expenses
    (2002) Thomas, C. M.
    Wrongful birth claims relate to the birth of a child as a consequence of medical negligence. There has been general acceptance by courts in various jurisdictions that costs relating to the pregnancy and birth may be recovered. However the more contentious issue is whether there is liability for the costs of rearing such a child. The English courts have held there is no such liability with respect to a healthy child, while in Australia, the Queensland Court of Appeal has taken the opposite view2. In New Zealand the issue has yet to be decided. The Accident Compensation scheme has limited the development of the law relating to personal injury in general, but the High Court has found that the scheme does not prevent claims for wrongful birth. It is argued that the New Zealand courts should follow the Australian decisions, as the English approach is based on the views of ordinary people on this moral question as perceived by judges. This requires the individual judge’s sense of the moral answer to a question to prevail, albeit in light of the judge’s view of the opinions of ordinary people. It is argued that this is a subjective approach in that, in such a complex and emotionally difficult area of the law, there is unlikely to be uniformity of opinion among the public, or even among judges. As such, this is arguably a matter better resolved by legislation than by the courts.
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    Should the law allow sentiment to triumph over science? The retention of body parts
    (2002) Thomas, C. M.
    The use of human body material including tissue and organs has been controversial for many centuries. Concerns arose in the eighteenth century about practices used to obtain corpses for dissection. Scientific studies in biotechnology have placed increased value on the body as a source of research material. At the same time there is now a greater emphasis on individual autonomy. Disputes reflect the striking differences between scientific or utilitarian perspectives and the body’s social meaning. This paper considers issues that have arisen in several countries relating to the use of body parts and considers whether the law in New Zealand is sufficient to prevent such problems from arising in New Zealand. The conclusion is that present legal structures are insufficient to keep pace with technological advances. If biotechnology is to advance, it is essential to address the issues of consent while respecting cultural and religious views of the need for respect for the human body.