Medicine and the Law

Cases of baby swapping in South Africa (SA) are very rare. In 1996 the first of these cases, Clinton-Parker v Administrator, Transvaal; Dawkins v Administrator, Transvaal, appeared before our courts. The parties in that instance decided to keep the babies who had been erroneously given to them, but the plaintiffs were awarded compensation for the emotional shock and injury they endured as the result of the defendant's negligence. In recent times we had the case of Child Law v NN and NS (GP), where the parties also decided to keep the children who had been erroneously given to them by the hospital staff. These scenarios, while difficult, have had amicable conclusions, with the parents electing not to pursue custody of their natural children. The situation would be more complex if either of the parties were to decide that they want their natural child back. A number of questions are pertinent here, and will guide the discussion in this article. Is it as simple as both of the 'psychological' parents returning the babies to their natural parents? Do the parents have a claim against the hospital staff? Unfortunately there is not a wealth of legal precedent to assist the SA courts in this regard. The article explores the jurisprudence that speaks to baby swapping, in an attempt to provide clarity and assistance in resolving these difficult cases.