Wrongful Birth, Wrongful Life

Question: Following a negligently performed tubal ligation, a 45-year-old multiparous woman subsequently became pregnant and delivered her fifth child, who was born healthy. Which of the following choices is best?

A. Both mother and child can sue for damages.

B. Mother can sue doctor for negligent tubal ligation and wrongful birth.

C. Child, even if perfectly healthy, can sue for wrongful life.

D. Child will most likely prevail if he was born with birth disabilities.

E. Life, even if imperfect, is always better than nonlife, so nobody will be successful in any lawsuit.

Answer: B. Negligently performed sterilization procedures such as vasectomy or tubal ligation can form the basis for a malpractice lawsuit. Should the parents file a claim, the lawsuit is confusingly termed wrongful birth (or better, wrongful pregnancy).

The law has traditionally barred a wrongful life action. The prime reason given is that life, even if imperfect, is always preferable to nonlife. Besides, it would be impossible to assess the quantum of damages since it would necessarily require placing a monetary worth on human existence. The seminal case is the 1967 New Jersey decision in Gleitman v. Cosgrove. The mother had contracted rubella during early pregnancy and the doctor had wrongly assured her that no harm would come to the fetus. As a result, she did not seek to terminate her pregnancy. In rejecting the child’s wrongful life claim, the court asserted that the "infant plaintiff would have us measure the difference between his life with defects against the utter void of nonexistence, but it is impossible to make such a determination." Concerned that it would otherwise be viewed as advocating abortion, the court also denied the mother’s separate claim for wrongful birth, choosing instead to focus on the "unmeasurable, and complex human benefits of motherhood and fatherhood."

New Jersey’s position has since changed, and in Berman v. Allan, it allowed damages for maternal emotional distress though not for medical and other expenses of raising the child. The court, however, continued to reject the infant’s claim for wrongful life. But in 1984, it allowed such a claim under very special circumstances. The infant was born with multiple congenital abnormalities (blindness, deafness, and mental retardation) after the physician had failed to diagnose rubella in the mother. By the time the case was brought, the statute of limitations had lapsed, barring the parents from filing an action. The court held that "a child or his parents may recover special damages for extraordinary medical expenses incurred during infancy, and that the infant may recover those expenses during his majority."

It was once argued that the defendant doctor owes no duty where his/her tortious acts or omissions had resulted in the birth of a healthy if unplanned child, since the benefits to the parents of having a healthy child outweigh any detriments. This line of reasoning has gradually eroded, and parents can now recover damages for pecuniary losses and even emotional distress for wrongful birth. The damages cover the physical, emotional, and financial costs of pregnancy and delivery, but not the costs associated with the normal rearing of a healthy child. In exceptional cases, courts have awarded limited damages to the parents for some child-rearing costs (for example, where the child is physically or mentally handicapped).

However, the legal situation is quite different for the infant. In the case of a failed sterilization or abortion procedure, for example, only the parents – not the infant – will have redress at law. Courts continue to refuse claims brought by healthy infants for wrongful life, adopting the reasoning in Berman that the infant is in essence claiming that its very life is wrongful, but it has not suffered any damage recognizable by the law by being brought into existence. Even an infant with birth disabilities will not prevail in the vast majority of jurisdictions, with California being a notable exception. One of the latest courts to deny a claim for wrongful life was the South Carolina Supreme Court.

Finally, we should distinguish wrongful birth and wrongful life cases from those cases in which a doctor inflicts harm on the fetus in utero (for example, by administration of a teratogenic drug). A lawsuit would then be available to the injured infant, but there is controversy surrounding when the legal duty to the fetus arises (that is, before fetal viability, after viability, or even preconception, such as in cases of genetic damage to an ovum from physical, chemical, or radiologic injury). There is also an issue as to whether a stillborn fetus has a cause of action for wrongful death, or whether the child has first to be born alive. The resolution of this question centers in part on the language and intent of each state’s wrongful death statute.

This column, "Law & Medicine," regularly appears in Internal Medicine News, an Elsevier publication. Dr. Tan is former professor of medicine and adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author.

Question: Following a negligently performed tubal ligation, a 45-year-old multiparous woman subsequently became pregnant and delivered her fifth child, who was born healthy. Which of the following choices is best?

A. Both mother and child can sue for damages.

B. Mother can sue doctor for negligent tubal ligation and wrongful birth.

C. Child, even if perfectly healthy, can sue for wrongful life.

D. Child will most likely prevail if he was born with birth disabilities.

E. Life, even if imperfect, is always better than nonlife, so nobody will be successful in any lawsuit.

Answer: B. Negligently performed sterilization procedures such as vasectomy or tubal ligation can form the basis for a malpractice lawsuit. Should the parents file a claim, the lawsuit is confusingly termed wrongful birth (or better, wrongful pregnancy).

The law has traditionally barred a wrongful life action. The prime reason given is that life, even if imperfect, is always preferable to nonlife. Besides, it would be impossible to assess the quantum of damages since it would necessarily require placing a monetary worth on human existence. The seminal case is the 1967 New Jersey decision in Gleitman v. Cosgrove. The mother had contracted rubella during early pregnancy and the doctor had wrongly assured her that no harm would come to the fetus. As a result, she did not seek to terminate her pregnancy. In rejecting the child’s wrongful life claim, the court asserted that the "infant plaintiff would have us measure the difference between his life with defects against the utter void of nonexistence, but it is impossible to make such a determination." Concerned that it would otherwise be viewed as advocating abortion, the court also denied the mother’s separate claim for wrongful birth, choosing instead to focus on the "unmeasurable, and complex human benefits of motherhood and fatherhood."

New Jersey’s position has since changed, and in Berman v. Allan, it allowed damages for maternal emotional distress though not for medical and other expenses of raising the child. The court, however, continued to reject the infant’s claim for wrongful life. But in 1984, it allowed such a claim under very special circumstances. The infant was born with multiple congenital abnormalities (blindness, deafness, and mental retardation) after the physician had failed to diagnose rubella in the mother. By the time the case was brought, the statute of limitations had lapsed, barring the parents from filing an action. The court held that "a child or his parents may recover special damages for extraordinary medical expenses incurred during infancy, and that the infant may recover those expenses during his majority."

It was once argued that the defendant doctor owes no duty where his/her tortious acts or omissions had resulted in the birth of a healthy if unplanned child, since the benefits to the parents of having a healthy child outweigh any detriments. This line of reasoning has gradually eroded, and parents can now recover damages for pecuniary losses and even emotional distress for wrongful birth. The damages cover the physical, emotional, and financial costs of pregnancy and delivery, but not the costs associated with the normal rearing of a healthy child. In exceptional cases, courts have awarded limited damages to the parents for some child-rearing costs (for example, where the child is physically or mentally handicapped).

However, the legal situation is quite different for the infant. In the case of a failed sterilization or abortion procedure, for example, only the parents – not the infant – will have redress at law. Courts continue to refuse claims brought by healthy infants for wrongful life, adopting the reasoning in Berman that the infant is in essence claiming that its very life is wrongful, but it has not suffered any damage recognizable by the law by being brought into existence. Even an infant with birth disabilities will not prevail in the vast majority of jurisdictions, with California being a notable exception. One of the latest courts to deny a claim for wrongful life was the South Carolina Supreme Court.

Finally, we should distinguish wrongful birth and wrongful life cases from those cases in which a doctor inflicts harm on the fetus in utero (for example, by administration of a teratogenic drug). A lawsuit would then be available to the injured infant, but there is controversy surrounding when the legal duty to the fetus arises (that is, before fetal viability, after viability, or even preconception, such as in cases of genetic damage to an ovum from physical, chemical, or radiologic injury). There is also an issue as to whether a stillborn fetus has a cause of action for wrongful death, or whether the child has first to be born alive. The resolution of this question centers in part on the language and intent of each state’s wrongful death statute.

This column, "Law & Medicine," regularly appears in Internal Medicine News, an Elsevier publication. Dr. Tan is former professor of medicine and adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author.

Question: Following a negligently performed tubal ligation, a 45-year-old multiparous woman subsequently became pregnant and delivered her fifth child, who was born healthy. Which of the following choices is best?

A. Both mother and child can sue for damages.

B. Mother can sue doctor for negligent tubal ligation and wrongful birth.

C. Child, even if perfectly healthy, can sue for wrongful life.

D. Child will most likely prevail if he was born with birth disabilities.

E. Life, even if imperfect, is always better than nonlife, so nobody will be successful in any lawsuit.

Answer: B. Negligently performed sterilization procedures such as vasectomy or tubal ligation can form the basis for a malpractice lawsuit. Should the parents file a claim, the lawsuit is confusingly termed wrongful birth (or better, wrongful pregnancy).

The law has traditionally barred a wrongful life action. The prime reason given is that life, even if imperfect, is always preferable to nonlife. Besides, it would be impossible to assess the quantum of damages since it would necessarily require placing a monetary worth on human existence. The seminal case is the 1967 New Jersey decision in Gleitman v. Cosgrove. The mother had contracted rubella during early pregnancy and the doctor had wrongly assured her that no harm would come to the fetus. As a result, she did not seek to terminate her pregnancy. In rejecting the child’s wrongful life claim, the court asserted that the "infant plaintiff would have us measure the difference between his life with defects against the utter void of nonexistence, but it is impossible to make such a determination." Concerned that it would otherwise be viewed as advocating abortion, the court also denied the mother’s separate claim for wrongful birth, choosing instead to focus on the "unmeasurable, and complex human benefits of motherhood and fatherhood."

New Jersey’s position has since changed, and in Berman v. Allan, it allowed damages for maternal emotional distress though not for medical and other expenses of raising the child. The court, however, continued to reject the infant’s claim for wrongful life. But in 1984, it allowed such a claim under very special circumstances. The infant was born with multiple congenital abnormalities (blindness, deafness, and mental retardation) after the physician had failed to diagnose rubella in the mother. By the time the case was brought, the statute of limitations had lapsed, barring the parents from filing an action. The court held that "a child or his parents may recover special damages for extraordinary medical expenses incurred during infancy, and that the infant may recover those expenses during his majority."

It was once argued that the defendant doctor owes no duty where his/her tortious acts or omissions had resulted in the birth of a healthy if unplanned child, since the benefits to the parents of having a healthy child outweigh any detriments. This line of reasoning has gradually eroded, and parents can now recover damages for pecuniary losses and even emotional distress for wrongful birth. The damages cover the physical, emotional, and financial costs of pregnancy and delivery, but not the costs associated with the normal rearing of a healthy child. In exceptional cases, courts have awarded limited damages to the parents for some child-rearing costs (for example, where the child is physically or mentally handicapped).

However, the legal situation is quite different for the infant. In the case of a failed sterilization or abortion procedure, for example, only the parents – not the infant – will have redress at law. Courts continue to refuse claims brought by healthy infants for wrongful life, adopting the reasoning in Berman that the infant is in essence claiming that its very life is wrongful, but it has not suffered any damage recognizable by the law by being brought into existence. Even an infant with birth disabilities will not prevail in the vast majority of jurisdictions, with California being a notable exception. One of the latest courts to deny a claim for wrongful life was the South Carolina Supreme Court.

Finally, we should distinguish wrongful birth and wrongful life cases from those cases in which a doctor inflicts harm on the fetus in utero (for example, by administration of a teratogenic drug). A lawsuit would then be available to the injured infant, but there is controversy surrounding when the legal duty to the fetus arises (that is, before fetal viability, after viability, or even preconception, such as in cases of genetic damage to an ovum from physical, chemical, or radiologic injury). There is also an issue as to whether a stillborn fetus has a cause of action for wrongful death, or whether the child has first to be born alive. The resolution of this question centers in part on the language and intent of each state’s wrongful death statute.

This column, "Law & Medicine," regularly appears in Internal Medicine News, an Elsevier publication. Dr. Tan is former professor of medicine and adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author.