Harriton v Stephens

On 29 April 2005, Harriton and Waller were granted special leave to appeal to the High Court.^[11] Their appeals were heard together on 10 November 2005.^[12] Bret Walker acted as senior counsel for Harriton instructed by Maurice Blackburn Cashman; Blake Dawson acted for Stephens with Stephen Gageler as senior counsel.

The High Court decided on 9 May 2006, by a 6–1 majority, to dismiss Harriton's appeal.^[1] Waller's appeal was dismissed on the same day with the majority in that judgment following the reasons in Harriton's appeal.^[13] The leading judgment was written by Justice Crennan, with whom Chief Justice Gleeson and Justices Gummow and Heydon concurred, giving her reasons majority support.^[14] Justices Callinan and Hayne wrote separate judgments agreeing to dismiss the appeal, while Justice Kirby dissented.^[15]

The High Court's judgment was reported in the media as a "landmark case".^[16] Richard Ackland, a journalist and lawyer,^[17] criticised the judgment in the Sydney Morning Herald, arguing:

What the majority position fails to accommodate is that there is a new modern order. Medical technology can detect abnormalities at very early stages of the development of a foetus. Good medical practice regularly results in the non-existence of human beings. What has been created by way of Alexia [Harriton] and Keeden [Waller] is precisely what the doctors were engaged to prevent being created.^[18]

Margaret Fordham, a legal academic, wrote after the judgment that for wrongful life claims to gain acceptance, "the courts would have to undergo a complete change of heart with respect to the moral and ethical implications of such actions".^[19] Academics Evelyn Ellis and Brenda McGivern referred to the judgment as an emphatic rejection of claims for wrongful life and compared the judgment to similar rejections of wrongful life claims by courts in the United Kingdom.^[20]

The outcome of the judgment was criticised in the Sydney Law Review, which concluded:

Logic might have demanded the outcome reached by the High Court in Harriton, but fairness demands another.^[21]

Dean Stretton, a lawyer writing in the Melbourne University Law Review, claimed that the High Court's judgment "regressed", "depriving the plaintiffs of a legally justified remedy by resort to inconsistent logic and ill-considered policy".^[22]

• Ellis, Evelyn; McGivern, Brenda (2007). "The wrongfulness or rightfulness of actions for wrongful life". Tort Law Review. 15. North Ryde, NSW: Law Book Co.: 135. ISSN 1039-3285.
• Fordham, Margaret (2007). "A life less ordinary—The rejection of actions for wrongful life". Torts Law Journal. 15. North Ryde, NSW: Law Book Co.: 123. ISSN 1038-5967.
• Walmsley, Stephen; Abadee, Alister; Zipser, Ben (2007). Professional liability in Australia (2nd ed.). NSW: Lawbook Co. ISBN 978-0-455-22425-1.