Comment by Michael A. Berenson
The claims of “wrongful birth,”' “wrongful life,”' and “wrongful conception”' are relatively new in the case law. Traditionally, such claims simply would be classified under the rubric of medical malpractice. But in a world of legal micro-specialization, these small, neat compartments may provide comfort for those who desire to isolate a narrow cause of action. Much of the jurisprudence in this field came down after the landmark abortion decision, Roe v. Wade, and its partial legitimization of abortion. Because Roe made legal abortions available, a woman was able to claim that had she known of a hereditary genetic defect or the defective condition of her fetus, she would have terminated her pregnancy. Many of the relevant cases are discussed in excellent articles published in law journals and reviews since 1980.
All these claims are based, in some fashion, on the birth of an unwanted child. In some cases the conception is desired, but the physician's failure to predict or diagnose a fetal defect, either genetic or pregnancy-specific, results in the birth of a defective child. Frequently, the plaintiff will allege that the physician failed to provide information concerning probable birth defects, thus preventing the mother from terminating the pregnancy. In instances in which conception is not desired, pregnancy is the result of an improperly performed sterilization procedure. In these latter cases, plaintiffs bring claims for the birth of healthy, as well as defective children. In all cases, however, the asserted negligence may involve any number of negligent acts including the misdiagnosis of a hereditary condition, a misrepresentation of the risks involved with conception and delivery of a child, negligent interpretation of prenatal tests, or negligent failure to perform necessary prenatal tests.
Quite often, the basis for a claim is the harm caused by the physician's allegedly negligent conduct that occurred before the child's conception. A question of timing, therefore, may raise substantial issues of a superseding, intervening cause in the proximate cause analysis. Further, the physician's ability to foresee a defective birth plays a pivotal role both in establishing the duty requirement and causally linking the negligent conduct to the resulting injuries.
This Comment will discuss the underlying differences between the three types of claims and will explain the sources of these causes of action. It will also briefly discuss the applicable statutory provisions enacted by legislatures of several states. The Comment will focus, however, on the wrongful life action even if the plaintiffs have brought more than one claim. Such an emphasis is not intended to diminish the importance of wrongful birth or wrongful conception actions, but to permit a sharper focus on the more difficult conceptual issue: the right to claim injury for impaired existence rather than no existence at all.
About the Author
Michael A. Berenson.
Citation
64 Tul. L. Rev. 895 (1990)