Wrongful birth
Encyclopedia
Wrongful birth is a legal cause of action in some common law
countries in which the parents of a congenitally diseased child claim that their doctor failed to properly warn of their risk of conceiving or giving birth to a child with serious genetic or congenital abnormalities. Thus, the plaintiffs claim, the defendant prevented them from making a truly informed decision as to whether or not to have the child. Wrongful birth is a type of medical malpractice tort. It is distinguished from wrongful life
, in which the child sues the doctor.
If the plaintiffs allege that the defendant failed to properly diagnose the plaintiffs’ risk of passing on a genetic disorder or other abnormality, then the plaintiffs must put forth expert testimony as to the standard of care for the diagnosis at issue. Lay juries do not have the necessary knowledge of medical practice to evaluate the conduct of doctors without the assistance of an expert witness.
If the plaintiffs allege that the defendant failed to disclose the risk of conceiving a child with an abnormality, then the plaintiffs must show that the doctor had the duty to make the disclosure at issue. Doctors are under an obligation to disclose to their patients the risks of passing on a genetic condition to their prospective children. However, the doctor need not disclose all risks or recommend all available testing procedures. For example, in the case of Munro v. Regents of the University of California, the court held that the doctor was not under an obligation to recommend a Tay-Sachs test when the doctor had no reason to suspect his patients were at any more at risk for Tay-Sachs
that the general population, when the risk of Tay-Sachs among the general population was between 1 in 200 and 1 in 300, and when the Tay-Sachs test was "generally useless" for the vast majority of patients.
The plaintiffs may also prove the negligence element by showing that the doctor failed to properly disclose the availability of genetic or prenatal screening procedures. As in other failure to disclose cases, the plaintiff will need to show that doctor owed a duty to make the disclosures at issue.
More recently, plaintiffs have been able to prove the causation element by showing that the defendant’s negligence deprived them of the opportunity to fully consider the choice whether or not to conceive or abort their fetus. However, the plaintiffs must still prove that had the doctor acted properly they would have declined to conceive or would have aborted their abnormal fetus. This standard for causation has allowed plaintiffs to more easily prove the causation element. Still, the plaintiffs’ claim that they would not have had an abnormal child is in some ways speculative. The decision whether or not to conceive given the risk of bearing an abnormal child would likely to be difficult and emotional, with an unpredictable outcome, as would the decision to abort an abnormal fetus. Additionally, some defendants have argued that the tort is subject to fraudulent claims, as proof of the claim that the plaintiffs would have aborted an abnormal fetus would often come in the form of the plaintiff’s retrospective and subjective testimony.
However, some states have statutorily banned wrongful birth actions. See for example Idaho Code §5-334(1): "A cause of action shall not arise, and damages shall not be awarded, on behalf of any person, based on the claim that but for the act or omission of another, a person would not have been permitted to have been born alive but would have been aborted."
, a practice some consider unethical. Doctors under threat of being sued for wrongful birth have an incentive to be vigilant in detecting the risk that prospective parents will have a congenitally diseased child, in disclosing any risks to the prospective parents, and in recommending various tests to determine the risk or existence a congenital abnormality. Thus, more prospective parents will become aware of that their fetuses have congenital abnormalities, giving them reason to abort. Additionally, the wrongful birth tort may increase the rate at which doctors incorrectly diagnose a fetus with an abnormality (as a precaution against the possibility of missing an abnormality, which could form the basis of a wrongful birth suit), leading to abortion of healthy fetuses.
Recognition of wrongful birth actions may amount to or encourages state-sponsored eugenics
. The plaintiffs in a wrongful birth suit believe that it is less "desirable" to have a child with a genetic or congenital abnormality than it is to have either a normal child or no child at all. Thus, those plaintiffs are "discouraging reproduction by persons having genetic defects" – i.e. themselves as carriers of genetic diseases and their potential offspring as symptomatic carriers. Eugenics has a sordid history in the U.S. and elsewhere, having resulted in forced sterilization and other unethical practices. See the case of Buck v. Bell
, in which the U.S. Supreme Court ruled that "three generations of idiots is enough" and that the state could force sterilization of those who will pass on socially undesirable characteristics to their offspring. Recognition of a wrongful birth tort essentially amounts to state approval of eugenics insofar as it requires the courts to admit that congenitally diseased people are in some legally cognizable way less "desirable" or more burdensome than those without congenital conditions.
An abnormal child who is the result of a wrongful birth may be psychologically damaged by the knowledge that their parents consider them to be "undesirable". Moreover, allowing wrongful birth suits may cause a general societal prejudice against those living with mental retardation
or other congenital conditions, since the wrongful birth tort suggest that some people – the congenitally diseased – should not have been born in the first place.
In a wrongful birth case, the doctor’s negligence presents the plaintiffs with the potentially huge monetary cost of caring for an impaired child – a cost the plaintiffs may not be able to pay. The wrongful birth cause of action is in the best interest of the child, as it allows the plaintiffs to recover the money necessary to give the child proper medical care. Moreover, a doctor’s negligent failure to recognize a fetal abnormality may result in an enormous emotional shock to the parents as their hopes of having a healthy child (stoked by the doctor’s assurances) are dashed immediately after the child’s birth. Wrongful birth allows the parents to recover for this shock.
Though prospective parents who do not conceive because of the risk of genetic diseases, or who abort fetuses with genetic abnormalities, are practicing a form of eugenics, they are doing so voluntarily without the coercion present in state sponsored eugenics programs. Recognition of parents’ autonomy interest in making informed decisions whether or not to have a child favors giving parents the right to practice voluntary eugenics. Failure to recognize a wrongful birth cause of action would frustrate that right.
The parents sued on a theory of wrongful birth. The court ruled "the parents of a congenitally defective child may maintain an action for its wrongful birth if the birth was the result of the negligent failure of the attending physician to discover and inform them of the existence of fetal defects." The plaintiffs could recover for any medical expenses caused by the defendant’s negligence as well as for the physical pain of the wife, loss of consortium and mental and emotional suffering.
is a legal cause of action in which a congenitally-diseased child sues the doctor, claiming that but for the negligence of the doctor, the child would not have been born into a life of pain and suffering. The child claims he or she would have been better off never having been born than having been born with a congenital disease. Unlike wrongful birth causes of action, most states do not recognize the wrongful life cause of action. Some courts have reasoned that wrongful life claims call for the court to answer a metaphysical question better left to theologians and philosophers: whether it is better never to be born than to be born with a congenital disease. However, some courts, starting with California, have recognized the wrongful life claim. The California Court of Appeal
held in 1980 that "a reverent appreciation of life compels recognition that [a wrongful life] plaintiff, however impaired she may be, has come into existence as a living person with certain rights" – i.e. the right to recover against a doctor whose negligence resulted in her disease. In 1982, the Supreme Court of California
largely endorsed and adopted the Court of Appeal's holding in a different case but limited the child's recovery to special damages.
, tubal ligation
, or other sterilization procedure, resulting in an unwanted pregnancy and/or birth. The resulting child is usually healthy, though unwanted.
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
countries in which the parents of a congenitally diseased child claim that their doctor failed to properly warn of their risk of conceiving or giving birth to a child with serious genetic or congenital abnormalities. Thus, the plaintiffs claim, the defendant prevented them from making a truly informed decision as to whether or not to have the child. Wrongful birth is a type of medical malpractice tort. It is distinguished from wrongful life
Wrongful life
Wrongful life is the name given to a legal action in which someone is sued by a severely disabled child for failing to prevent the child's birth....
, in which the child sues the doctor.
Elements
The elements of a wrongful birth claim are:- the existence of a patient-doctor relationship between the defendant and the plaintiff;
- the doctor negligently failed to disclose to the prospective parents the risk of having a child with a genetic or congenital disease;
- the plaintiff suffered harm; and
- the doctor’s negligence caused that harm.
Patient-doctor relationship
The plaintiff must establish the existence of a patient-doctor relationship by showing that the doctor gave the plaintiff a medical diagnosis or medical advice.Negligence
In a wrongful birth case the plaintiff must show that the doctor failed follow the standard of care with respect the diagnosis or disclosure of the plaintiffs’ risk of transmitting genetic or congenital abnormalities to their children.If the plaintiffs allege that the defendant failed to properly diagnose the plaintiffs’ risk of passing on a genetic disorder or other abnormality, then the plaintiffs must put forth expert testimony as to the standard of care for the diagnosis at issue. Lay juries do not have the necessary knowledge of medical practice to evaluate the conduct of doctors without the assistance of an expert witness.
If the plaintiffs allege that the defendant failed to disclose the risk of conceiving a child with an abnormality, then the plaintiffs must show that the doctor had the duty to make the disclosure at issue. Doctors are under an obligation to disclose to their patients the risks of passing on a genetic condition to their prospective children. However, the doctor need not disclose all risks or recommend all available testing procedures. For example, in the case of Munro v. Regents of the University of California, the court held that the doctor was not under an obligation to recommend a Tay-Sachs test when the doctor had no reason to suspect his patients were at any more at risk for Tay-Sachs
Tay-Sachs disease
Tay–Sachs disease is an autosomal recessive genetic disorder...
that the general population, when the risk of Tay-Sachs among the general population was between 1 in 200 and 1 in 300, and when the Tay-Sachs test was "generally useless" for the vast majority of patients.
The plaintiffs may also prove the negligence element by showing that the doctor failed to properly disclose the availability of genetic or prenatal screening procedures. As in other failure to disclose cases, the plaintiff will need to show that doctor owed a duty to make the disclosures at issue.
Harm
The plaintiffs in a wrongful birth case may claim that their harms consist in having a child with an undesired abnormality and/or in having been denied the opportunity to make a fully informed choice as to whether to conceive or to abort the fetus.Cause
In the past, plaintiffs have had to prove cause by showing that if the defendant had not been negligent, the child would have been normal. Under this standard, the defendant may argue that even if he failed to diagnose an existing fetus with a genetic or developmental abnormality, he did not cause the parents or fetus to have mutated genes or the fetus to develop the abnormality. Once the fetus is determined to have an abnormality, the doctor may not be able to treat the fetus, making the abnormality inevitable. If the doctor fails to diagnose the plaintiff’s risk of transmitting a genetic disease, or fails to inform the plaintiff of that risk, then it is the combination of the parents’ genetic mutations and choice to have a child that most directly results in the conception of an abnormal child. Because of difficulties in proving cause under this standard some courts disallowed wrongful birth suits.More recently, plaintiffs have been able to prove the causation element by showing that the defendant’s negligence deprived them of the opportunity to fully consider the choice whether or not to conceive or abort their fetus. However, the plaintiffs must still prove that had the doctor acted properly they would have declined to conceive or would have aborted their abnormal fetus. This standard for causation has allowed plaintiffs to more easily prove the causation element. Still, the plaintiffs’ claim that they would not have had an abnormal child is in some ways speculative. The decision whether or not to conceive given the risk of bearing an abnormal child would likely to be difficult and emotional, with an unpredictable outcome, as would the decision to abort an abnormal fetus. Additionally, some defendants have argued that the tort is subject to fraudulent claims, as proof of the claim that the plaintiffs would have aborted an abnormal fetus would often come in the form of the plaintiff’s retrospective and subjective testimony.
Damages
Most courts now only allow only the costs associated with raising an abnormal child, such as medical care that would not be needed for a healthy child. Thus, most courts do not allow the recovery of all costs associated with raising the plaintiffs’ child. Some courts have ruled that plaintiffs may recover additional damages, such as those for emotional distress, loss of consortium, and physical pain suffered by the wife during delivery of an unhealthy child. See the example of the Keel case below.Economic Analysis
Recently, in a competition named: "Gicelter" of the Association of Medicine and Law, the Israeli researcher winner: Mr. Don Sosunov has developed an economic model showing that the change in the probability of loss for procreation tort claim is inversely proportional to the amount of procedures being taken to treat the child.Prevalence
Twenty-five U.S. states now recognize the wrongful birth cause of action.However, some states have statutorily banned wrongful birth actions. See for example Idaho Code §5-334(1): "A cause of action shall not arise, and damages shall not be awarded, on behalf of any person, based on the claim that but for the act or omission of another, a person would not have been permitted to have been born alive but would have been aborted."
Controversy
There is some controversy as to which or not the wrongful birth cause of action should be recognized.Arguments against
Allowing the wrongful birth cause of action may increase the rate of abortionAbortion
Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
, a practice some consider unethical. Doctors under threat of being sued for wrongful birth have an incentive to be vigilant in detecting the risk that prospective parents will have a congenitally diseased child, in disclosing any risks to the prospective parents, and in recommending various tests to determine the risk or existence a congenital abnormality. Thus, more prospective parents will become aware of that their fetuses have congenital abnormalities, giving them reason to abort. Additionally, the wrongful birth tort may increase the rate at which doctors incorrectly diagnose a fetus with an abnormality (as a precaution against the possibility of missing an abnormality, which could form the basis of a wrongful birth suit), leading to abortion of healthy fetuses.
Recognition of wrongful birth actions may amount to or encourages state-sponsored eugenics
Eugenics
Eugenics is the "applied science or the bio-social movement which advocates the use of practices aimed at improving the genetic composition of a population", usually referring to human populations. The origins of the concept of eugenics began with certain interpretations of Mendelian inheritance,...
. The plaintiffs in a wrongful birth suit believe that it is less "desirable" to have a child with a genetic or congenital abnormality than it is to have either a normal child or no child at all. Thus, those plaintiffs are "discouraging reproduction by persons having genetic defects" – i.e. themselves as carriers of genetic diseases and their potential offspring as symptomatic carriers. Eugenics has a sordid history in the U.S. and elsewhere, having resulted in forced sterilization and other unethical practices. See the case of Buck v. Bell
Buck v. Bell
Buck v. Bell, , was the United States Supreme Court ruling that upheld a statute instituting compulsory sterilization of the unfit, including the mentally retarded, "for the protection and health of the state." It was largely seen as an endorsement of negative eugenics—the attempt to improve...
, in which the U.S. Supreme Court ruled that "three generations of idiots is enough" and that the state could force sterilization of those who will pass on socially undesirable characteristics to their offspring. Recognition of a wrongful birth tort essentially amounts to state approval of eugenics insofar as it requires the courts to admit that congenitally diseased people are in some legally cognizable way less "desirable" or more burdensome than those without congenital conditions.
An abnormal child who is the result of a wrongful birth may be psychologically damaged by the knowledge that their parents consider them to be "undesirable". Moreover, allowing wrongful birth suits may cause a general societal prejudice against those living with mental retardation
Mental retardation
Mental retardation is a generalized disorder appearing before adulthood, characterized by significantly impaired cognitive functioning and deficits in two or more adaptive behaviors...
or other congenital conditions, since the wrongful birth tort suggest that some people – the congenitally diseased – should not have been born in the first place.
Arguments for
The prospective parents of any child have an autonomy interest in making informed decisions about whether or not to procreate. Many prospective parents might want to know if they are at high risk for passing a genetic disease to their offspring. They also might want to know whether their fetus has some kind of congenital abnormality. A doctor who fails to adequately disclose the risk that his patients might have an abnormal child, or who fails to properly diagnose an abnormal fetus, is depriving the prospective parents of the chance to make a fully informed procreative decision. In light of the great importance many people place on their procreative decisions and the care with which they make them, a doctor whose negligence interferes with those decisions should be held responsible for the consequences of that negligence.In a wrongful birth case, the doctor’s negligence presents the plaintiffs with the potentially huge monetary cost of caring for an impaired child – a cost the plaintiffs may not be able to pay. The wrongful birth cause of action is in the best interest of the child, as it allows the plaintiffs to recover the money necessary to give the child proper medical care. Moreover, a doctor’s negligent failure to recognize a fetal abnormality may result in an enormous emotional shock to the parents as their hopes of having a healthy child (stoked by the doctor’s assurances) are dashed immediately after the child’s birth. Wrongful birth allows the parents to recover for this shock.
Though prospective parents who do not conceive because of the risk of genetic diseases, or who abort fetuses with genetic abnormalities, are practicing a form of eugenics, they are doing so voluntarily without the coercion present in state sponsored eugenics programs. Recognition of parents’ autonomy interest in making informed decisions whether or not to have a child favors giving parents the right to practice voluntary eugenics. Failure to recognize a wrongful birth cause of action would frustrate that right.
Example
In the case of Keel v. Banach the plaintiffs were a man and his pregnant wife, who both sought to avoid having a child with genetic or developmental abnormalities. The man’s previous stillborn child had a spinal cord defect and other abnormalities known to have a hereditary basis, placing the man at increased risk of fathering a second child with such abnormalities. The defendant was an obstetrician who performed several sonograms on the woman and her developing fetus. The defendant did not detect any abnormalities and assured the parents that their child was developing normally. However, the child was born with a variety of severe congenital abnormalities, requiring multiple surgeries. The child died at the age of six.The parents sued on a theory of wrongful birth. The court ruled "the parents of a congenitally defective child may maintain an action for its wrongful birth if the birth was the result of the negligent failure of the attending physician to discover and inform them of the existence of fetal defects." The plaintiffs could recover for any medical expenses caused by the defendant’s negligence as well as for the physical pain of the wife, loss of consortium and mental and emotional suffering.
Wrongful life
Wrongful lifeWrongful life
Wrongful life is the name given to a legal action in which someone is sued by a severely disabled child for failing to prevent the child's birth....
is a legal cause of action in which a congenitally-diseased child sues the doctor, claiming that but for the negligence of the doctor, the child would not have been born into a life of pain and suffering. The child claims he or she would have been better off never having been born than having been born with a congenital disease. Unlike wrongful birth causes of action, most states do not recognize the wrongful life cause of action. Some courts have reasoned that wrongful life claims call for the court to answer a metaphysical question better left to theologians and philosophers: whether it is better never to be born than to be born with a congenital disease. However, some courts, starting with California, have recognized the wrongful life claim. The California Court of Appeal
California Court of Appeal
The California Courts of Appeal are the state intermediate appellate courts in the U.S. state of California. The state is geographically divided into six appellate districts...
held in 1980 that "a reverent appreciation of life compels recognition that [a wrongful life] plaintiff, however impaired she may be, has come into existence as a living person with certain rights" – i.e. the right to recover against a doctor whose negligence resulted in her disease. In 1982, the Supreme Court of California
Supreme Court of California
The Supreme Court of California is the highest state court in California. It is headquartered in San Francisco and regularly holds sessions in Los Angeles and Sacramento. Its decisions are binding on all other California state courts.-Composition:...
largely endorsed and adopted the Court of Appeal's holding in a different case but limited the child's recovery to special damages.
Wrongful conception
In a wrongful conception case, the plaintiffs claim that their doctor negligently performed a vasectomyVasectomy
Vasectomy is a surgical procedure for male sterilization and/or permanent birth control. During the procedure, the vasa deferentia of a man are severed, and then tied/sealed in a manner such to prevent sperm from entering into the seminal stream...
, tubal ligation
Tubal ligation
Tubal ligation or tubectomy is a surgical procedure for sterilization in which a woman's fallopian tubes are clamped and blocked, or severed and sealed, either method of which prevents eggs from reaching the uterus for fertilization...
, or other sterilization procedure, resulting in an unwanted pregnancy and/or birth. The resulting child is usually healthy, though unwanted.