Reproductive rights have become a contentious issue in the United States. Many believe it is and essential right a woman to determine when, under what circumstances, and how often she will give birth in her lifetime. There is a viewpoint promoted by some religious groups that every conception should be treated as a human life and carried to term. But others see this as a fundamental denial of the mother’s right to determine if and when she will give birth. The problem becomes an especially thorny one when the woman is carrying a child who will never be able to live a normal life and may be subjected to painful and expensive medical procedures and intense suffering.
This situation forms the basis for two types of legal action in some common law legal systems, such as the United States, for “wrongful birth” and “wrongful life.” These two causes of action may arise when a doctor knows that a woman is likely to be carrying a child with a serious congenital defect and fails to inform the parents, resulting in the pregnancy being carried to term, allowing the severely ill child to be born who requires expensive care to maintain a poor quality of life.
It may involve:
- The withholding of genetic information that would predict the likelihood of a congenital disease or abnormality
- Failing to disclose the availability of genetic or prenatal screening procedure
- Failing to inform a woman who was given a drug, or who became ill with a disease like rubella, that the fetus could have been affected
- Failing to inform parents of an abnormality or high possibility of one, discovered during routine prenatal care
. . . any of which information could have led the parents either to avoid a pregnancy likely to produce a seriously ill or abnormal child altogether, or to terminate an existing pregnancy.
In brief, a wrongful birth action is one brought by the parents against the doctor for withholding the information they needed to make a well-informed decision.
A wrongful life action, in contrast, is brought by the child, through its parents or guardian, also against a medical professional or hospital, for withholding information, resulting in the child’s pain and suffering, which could have been prevented by the mother terminating the pregnancy or in some cases by avoiding becoming pregnant in the first place. It could also arise if a doctor negligently performed a sterilization procedure on a woman at risk for bearing a child with genetic abnormalities and a pregnancy and birth resulted from the doctor’s negligence. At issue are not the child’s disabilities, but the fact of the life itself. Only five U.S. states allow a civil action for wrongful life.
What Damages May Be Claimed in a Wrongful Birth Action?
These are the potential damages that parents may claim in a wrongful birth action:
- The additional costs of raising a child with special needs, above and beyond those of raising a healthy child, such as medical care, special schooling, therapy, medical devices, and so forth;
- Parent’s emotional distress
- Loss of consortium
- Pain and suffering of the mother during delivery of an abnormal or unhealthy baby
Complexity and Controversy
Wrongful birth and wrongful life cases are fraught with complexity and controversy. Proving causation can be tricky. While the doctor cannot be held responsible for actually causing the abnormality, it must be shown that the doctor was negligent in withholding information that would have allowed the parents to make an informed decision to prevent the birth of an unhealthy child. Opposing religious, philosophical, and political views regarding the sanctity of life and the beginning of legal personhood further complicate the matter and add a layer of controversy and emotionality that goes beyond the medical facts of the case. Parents contemplating this type of action need to ensure that they hire an experienced attorney without ambivalence about this type of case, who will provide the wholehearted commitment and compassion to help the plaintiffs weather what might be a wrenching emotional storm.
