Wrongful Birth: The Antithesis of Wrongful Death

While there is no debate as to the legitimacy of wrongful death lawsuits, controversy has arisen over their antithesis, ‘wrongful birth’ or ‘wrongful life’ lawsuits. This cause of action derives from a doctor’s failure to provide certain information or warn parents that their child has genetic or congenital abnormalities. An integral aspect of the decision to have an abortion is a parent’s ability to care for a child, both emotionally and financially. State laws that preclude wrongful birth lawsuits erase any legal recourse for a parent’s hampered ability to make the very intimate decision to have a child.

Currently, while nine states have laws that explicitly ban wrongful birth lawsuits, a majority of states do allow this cause of action. Arizona was one of the most recent states to disallow such lawsuits. Senator Nancy Barto sponsored the bill, stating that it was premised on the idea that all life is worthy of protection, whether or not the child is born with a disability. While her statement may be facially true, her attempt to support the bill merely by garnering sympathy for disability discrimination fails to address the true motivation for the procedure.

Although our Chicago birth defect lawyers understand that the decision to have a child is deeply personal and we do not take a stance on pro-life or pro-choice measures, we recognize that the motivation for abortions is easily definable: prospective parents are either unable or unwilling to have a child. Many would argue they are one in the same, for if a parent is unwilling, then he or she is unable to provide the child with necessary emotional support. An important aspect of abortion that has been repeatedly reinforced by the United States Supreme Court is that a parent need not give any justification for having an abortion prior to fetus viability. Therefore, this begs the question, what is the real motivation for the Arizona bill and others that seek to eliminate wrongful birth lawsuits?

Many suggest that the attack on wrongful birth lawsuits is merely a pretext for pro-life advocates to further restrict a parent’s ability to have an abortion. By eliminating legal recourse for wrongful birth violations, the Arizona bill allows physicians to withhold information that is essential to the decision of having an abortion without recourse. This dangerously enables physicians to inappropriately force their beliefs onto their patients with no threat of repercussions. We support full and fair access to the justice system for all citizens.

Senator Barto would rebut this argument by asserting that the Arizona bill still permits causes of action for “intentionally or grossly negligent acts.” While the bill does allow for some legal recourse, it is very limited, as intentional and gross negligence are very difficult standards to satisfy. Further, this exception does not resolve the central issue that this bill unconstitutionally places limits on abortion in the same way that the United States Supreme Court struck down such limits in Planned Parenthood v. Casey. Additionally, many states such as Kansas and New Jersey do not have such exceptions, enabling even more severe constitutional violations.

Stepping back from the debate of pro-choice or pro-life, it is important to remember the rationale for torts and civil penalties in society. The main purpose of tort law is to provide victims the resources necessary to put them in the same, or nearly the same, position they were in prior to the injury-inducing event. It also aims to compensate for physical and emotionalpain and suffering. Placing these goals in the perspective of wrongful birth lawsuits, parents who unexpectedly have a child with a genetic or congenital abnormality should be compensated for a physician’s failure to inform them of the abnormality, so that they can afford the medical care their child demands and deserves.

Juries apparently support the need for wrongful birth lawsuits. This is evidenced by two recent large damage awards. In Florida, a jury awarded the parents of a child born with only one leg approximately $4.5 million because this abnormality should have been detected through a routine amniocentesis. In Oregon, a jury awarded the parents of a child born with Down syndrome $3 million. The size of these awards reflects not only the moral condemnation of these medical mistakes, but also the importance of awarding damages that will be sufficient to support these children that will often require alifetime of medical care. This is something few parents can afford and few insurers are willing to cover.

Although wrongful birth and wrongful death lawsuits occur at opposite ends of an individual’s life, they address similar medical malpractice issues. In all medical malpractice situations, the justice system plays an integral role because it allows victims the recourse that they deserve.

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