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Better Off Dead: The Ethical Thicket of Wrongful Life, Wrongful Birth and Related Legal Issues

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Introduction

On October 13, a judge in Northern Ireland’s High Court dismissed claims brought by two children seeking damages from the IVF clinic that used mislabeled sperm to inseminate their mother’s eggs, resulting in the children having darker skin than their legal parents.  The parents had desired sperm from a “white” donor to be used in the insemination.  The children attempted to bring forth a “wrongful life” cause of action based on the color of their skin.

The judge held that it was inappropriate for the court to create a new law on whether a doctor owes a duty of care to a person prior to their existence or conception.  This issue, the court declared, is best left to the legislature.

In addition, the judge ruled that having darker skin is not an injury, stating that “these are healthy and normal children.  In a modern and civilized society the colour of their skin…cannot and should not count as connoting some damage to them.”

Although we applaud the judge for his refusal to legislate from the bench and for his statement on human equality, we can’t help but think: What if the children were physically or mentally disabled (and not “healthy and normal”) and the doctor could have known about the disability prior to the children’s birth?  Would acceptance of a wrongful birth case based on such disabilities be just as discriminatory and morally repugnant as accepting a wrongful life case based on skin color?  (I.e., isn’t disability as non-essential to being a human as skin color is?)  Unfortunately, wrongful birth cases based on disability are recognized as legitimate causes of action in the majority of the U.S. states, as well as in many foreign countries.

This essay shall discuss (1) the definitions and legal history of wrongful birth and wrongful life lawsuits; (2) the influence of Roe v. Wade on wrongful birth/life cases; (3) philosophical and practical questions relevant in the wrongful birth/life instance; and (4) wrongful conception and other related legal claims.

Wrongful Birth

A wrongful birth action is a medical malpractice suit defined as: “A lawsuit brought by parents against a doctor for failing to advise them prospectively about the risk of their having a child with birth defects.”   Had the parents known their child would be disabled, they would have aborted the child.

The most important wrongful birth case prior to Roe was the 1966 case, Gleitman v. Cosgrove.  In that case, the mother suffered from rubella during her pregnancy.  The physician advised the mother that the child would not be affected by her sickness.  The child was born with congenital sight, hearing and speech defects, and the parents sued the doctor, claiming damages for emotional and financial distress.

The court rejected the case as an illegitimate cause of action, declaring:

It is basic to the human condition to seek life and hold onto it, however heavily burdened….The right to life is inalienable in our society.  A court cannot say what defect should prevent an embryo from being allowed life….The sanctity of a single human life is the decisive factor in this suit in tort.  Eugenic considerations are not controlling.….We firmly believe the right of the child to live is greater than and precludes their right not to endure emotional and financial distress. (Emphasis added).

The 1973 Roe v. Wade decision opened the door for wrongful birth cases.  The 1978 case, Becker v. Schwartz, marked the first legal recognition of the wrongful birth cause of action in the U.S. after Roe.  Unlike in Gleitman, the sanctity of human life was no longer “the decisive factor” for wrongful birth cases.  The right asserted by the parents was no longer “their right not to endure emotional and financial distress,” but the new, all-encompassing “trump” card – the right to abortion.

The Becker case combined the claims from two families – the wrongful birth claims of two sets of parents, and the wrongful life claims brought on behalf of the infants (one born with Downs Syndrome, and the other with polycystic kidney disease).  The mothers argued that, had the doctors informed them of the risk of birth defects, they would have aborted their children.

The court ruled that the doctors effectively denied the mothers their right to abortion, and that the mothers were therefore entitled to damages for pecuniary expenses they have borne and will bear until the child’s death.  However, damages for emotional injuries and loss of consortium were denied.

Since this ruling, most of the states have accepted wrongful birth lawsuits, and have limited damages to medical expenses only.  Only a few states have prohibited wrongful birth cases, either by statute or case law

Wrongful Life

In a wrongful life action, the child (and not the parent) argues that he/she would have been better off dead, rather than alive with disabilities.  Unlike the wrongful birth claims, the court in Becker refused to acknowledge “wrongful life” as a legitimate cause of action.  This decision has been adopted by most U.S. jurisdictions, with only a few rare exceptions.

In Becker, the court pointed out two key flaws in the wrongful life argument:

First, the court noted that the infants – by being born – had not suffered any cognizable injury, and there is no way to show that their interests have suffered at all just by being alive.  The court referenced “the very nearly uniform high value which the law and mankind has placed on human life, rather than its absence.”

The court continued, presenting the important philosophical question that, if such claims were honored in cases of “less than a perfect birth…by what standard or by whom would perfection be defined?”  (That this reasoning was not applied in the wrongful birth situation is unfortunate).

Second, the court stated that damages are incalculable in monetary terms because it is impossible to compare life in an impaired state versus nonexistence.  Although the court did not even have to reach the discussion of damages, its statement in this regard supports its conclusion on the supreme value of being alive.

Related Legal Issues

In addition to wrongful birth claims, disappointed parents may also bring wrongful pregnancy and wrongful conception claims.  Wrongful pregnancy is when a healthy child is born after a failed sterilization; pregnancy is unwanted and unexpected.  A wrongful conception lawsuit is brought when a healthy child is born following a failure to diagnose the existence of a pregnancy.  A wrongful conception action can also be brought against the father in the case of an illegitimate birth.

With IVF and more sophisticated recent reproductive technologies widely available, the scope of wrongful conception claims has broadened to include claims against fertility clinics and sperm donor programs that use “faulty” sperm possessing “undesirable” genetic traits.  In addition to the philosophical and theological arguments against this type of lawsuit, such a scenario demonstrates the need for better laws and regulations in the reproductive technology industry, which currently enjoys practically unfettered discretion.

Although wrongful pregnancy and some wrongful conception claims are not based on a child’s disabilities or birth defects (i.e., they are not eugenics-driven), they are similar to wrongful birth cases in that they are brought by parents who wish that their children had never been born.

Philosophical and Practical Questions

Medical malpractice suits claiming that a child should have never been born and is better off dead than alive have serious philosophical implications, as well as emotional, psychological, sociological, and professional consequences for parents, children and doctors.  I cannot discuss these issues adequately here, but present the following topics as worth further consideration:

–     To what extent have wrongful birth/life claims contributed to the treatment of humans as mere commodities, “products” subject to quality standards and disposable if those are not met?

–    How often do doctors advise unnecessary abortions merely out of fear of being sued for malpractice?

–     Is the acceptance of wrongful birth claims equivalent to state approval of eugenics, and does it foster prejudices against the disabled?

–    What sort of emotional and psychological damage is done to children who know that their parents would have preferred it if they had never been born?

–     Are wrongful birth/life suits driving good doctors and medical students away from practicing obstetrics and gynecology?

–     Do wrongful birth and related claims impose a standard of complete perfection upon doctors, a standard which is impossible for them to reasonably live up to?

Conclusion

The recent case dismissed by Northern Ireland’s High Court brings our attention to the tragedy and perplexities of wrongful birth/life cases.  The ethical questions surrounding these lawsuits are easily dealt with if one gets back to basics: human life and birth, no matter how burdened, are never “wrongful,” but sacred gifts of infinite value.

 

 

(c) 2010 Culture of Life Foundation.  Reproduction granted with attribution required.

 

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