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.
Wendy McElroy is the editor of ifeminists.com. She is the author and editor of many books and articles, including the forthcoming anthology Liberty for Women: Freedom and Feminism in the 21st Century (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.