A new legal industry is arising to enrich lawyers, clog the
court systems and further saturate society with litigation. It
revolves around the concepts of "wrongful birth" and "wrongful
life."
In "wrongful birth," the parents of a disabled child initiate
a lawsuit, typically against a doctor who is accused of not
performing proper genetic screening or not adequately counseling
prospective parents. The essence of wrongful birth is that the
defendant's negligence resulted in the birth of a disabled child
whom the mother would have aborted had she received adequate
medical information.
In "wrongful life," the disabled child — or those acting on
the child's behalf — sues for being alive. Sometimes, the
parents become defendants. In essence, the child claims he/she
was damaged by being born and should be compensated.
The difference between wrongful birth and wrongful life is
largely that, in the latter, the money is awarded directly to
the child, not the parents, thus providing for his or her future
needs.
Wrongful birth is becoming widely accepted as a valid legal
category: wrongful life still encounters stiff resistance. A
Web
site that provides legal resources on "wrongful birth/life"
advises, "Currently [no date given], over twenty-five U.S.
jurisdictions recognize an action for wrongful birth and three
jurisdictions recognize actions for wrongful life."
In reaction to wrongful life/birth suits, states are
considering and sometimes creating
new
laws. Law firms are
gearing up to handle the new business. For example, the New
Jersey law firm
Blume
Goldfaden expects these suits to increase
as "prenatal testing becomes even more accurate in detecting
serious birth defects." The level of recent settlements listed
by Blume Goldfaden — $2 million, $1.5 million and 1.2 million —
will also encourage litigation.
Those involved in wrongful birth/life suits seem unusually
candid about wanting money. For example, in early 2000, Patricia
and Lawrence Hester asked the Ohio Supreme Court to allow them
to bring a wrongful life suit on behalf of their disabled
daughter, Alicia. Their doctors allegedly did not inform them of
prenatal tests that revealed a high possibility of spina bifida
in the fetus. (Had the Hesters known, Alicia would have been
aborted: thus a wrongful birth suit was brought simultaneously.)
The Hesters wanted the doctors to compensate Alicia for her
suffering and for financial costs, such as special education and
medical care, during her lifetime. By a narrow margin of
four-to-three, the Supreme Court voted against admitting the
wrongful life case.
Not just individual states but also nations are grappling
with the new litigious implications of genetic screening and
prenatal diagnosis. For example, the
French
parliament recently
prohibited wrongful life but not wrongful birth suits.
An ongoing
court case before a Supreme Court in Australia is
being brought on behalf of three disabled people, whose ages and
complaints open many doors for litigation. The eldest, 20 years
old, is disabled due to her mother contracting rubella during
pregnancy. The second, 2 years old, was born after a failed
vasectomy. The third, 17 months old, inherited a disorder that
screening could have detected.
The implications of this and other wrongful life cases around
the world are staggering — even without considering theological
objections and the background abortion debate. Merely some of
the questions they raise are:
Should the court system legally devalue the life of a
disabled person? An English court rejected a wrongful life case
(McKay v. Essex Area Health Authority, 1982) on the grounds that
recognizing the claim would "mean regarding the life of a
handicapped child as not only less valuable than the life of a
normal child, but so much less valuable that it was not worth
preserving."
Is it valid to equate a genetically produced disability with
a medical injury?
Should a lawyer representing a client be arguing that he or
she should not be alive?
Will huge settlements with the attendant rise in malpractice
insurance drive even more doctors out of obstetrics, an area of
medicine already experiencing severe shortages of care? In
France, for example, some doctors are refusing to offer
ultra-sound tests to avoid subsequent litigation.
Will doctors who remain in obstetrics advise discretionary
abortions in self-protection? Before the Supreme Court of
Canada, an accused doctor defended her decision not to "unduly
worry an expectant mother about an improbable risk and one for
which she [the doctor] would not advise therapeutic abortion."
(Arndt v. Smith, 1994)
If wrongful birth and life cases proliferate, will doctors
advise abortions even when risks are not probable?
The last quote is telling. Some wrongful birth/life cases
spring from just complaints against the medical profession. No
information should be withheld from expectant parents who have a
right to know the medical condition of their fetus. For one
thing, medical science now allows for the prenatal correction or
limitation of many defects.
The human cost of this new litigation is terrible. Parents
publicly tell a child that they wish he or she had never been
born. Disabled children may penalize loving parents who cared
enough to bear them, despite "flaws." And no one knows how many
healthy children will not be born because legally savvy doctors
urge parents to have discretionary abortions for fear of
bringing a "wrongful life" into the world.
