The Jurisprudence of Wrongful Life and Wrongful Birth in the United States

By Kate Seabury

AUL 2007 Fellow

“The sanctity of the single human life is the decisive factor in this suit in tort. Eugenic considerations are not controlling. We are not talking here about the breeding of prize cattle. It may have been easier for the mother and less expensive for the father to have terminated the life of their child while he was an embryo, but these alleged detriments cannot stand against the preciousness of the single human life to support a remedy in tort.”

--Justice Proctor, Gleitman v. Cosgrove, 1967

INTRODUCTION

Jeffrey Gleitman was born with severe physical disabilities effecting his sight, hearing, and speech. His mother had contracted German measles while in the first trimester of pregnancy and although her doctors had reassured her early on that the disease posed little threat to Jeffrey, post-birth assessments definitively blamed the measles for Jeffrey’s problems. Surgical intervention was necessary to help Jeffrey develop some visual capacity and he had to attend a special school to help him learn to function despite his inability to see or hear.

In the years following Jeffrey’s birth, Mr. and Mrs. Gleitman filed suit to obtain damages for their son’s misfortunes.They were angry that the doctors had misinformed them and there was some rumor that prescription of a special drug would have reduced the incident of birth defects.However, that was not the theory of their case. Instead, Mr. and Mrs. Gleitman claimed in court, on behalf of their son, that if they had known the risk of birth defects they would have aborted Jeffrey rather than allow him to be born. This would later become known as the first wrongful life case in American case law history.¹

KEY TERMS

One of the important issues in wrongful life and wrongful birth jurisprudence is the problem of defining the terms.Plaintiffs and courts utilize the terms “wrongful life” and “wrongful birth” in a variety of medical malpractice contexts. This only serves to confuse the issue and convolute the court’s thinking. Consequently, it is vitally important that courts realize the exact meaning of the terms they use so that the effect of such rhetoric can be fully recognized.²

Wrongful life is an “action…brought by or on behalf of the child…[who] alleges, because of the defendant’s negligence, his parents either decided to conceive him ignorant of the risk of an impairment or birth defect, or were deprived of information during gestation that would have prompted them to terminate the pregnancy.³” Simply put, in a wrongful life action, a child is arguing that (1) the pregnancy should have been terminated; (2) that “but for the defendant’s negligence” the plaintiff would not have been born; and (3) the plaintiff’s life would have been better not lived.⁴

Wrongful birth is an “action brought by the parent of a child born with an impairment or birth defect.⁵” The basic argument made by the parent is that he/she would have aborted the child if he/she had known that the child would be disabled. Since the birth defect is naturally occurring, “[t]he parent alleges that the negligence of those charged with prenatal testing or genetic counseling deprived them of the right to make a timely decision regarding whether to terminate a pregnancy because of the likelihood their child would be born physically or mentally impaired.”⁶

ISSUES

Wrongful life and wrongful birth claims raise significant issues because the core argument attacks the sanctity of life of every human person—these claims assert that some lives are better off not lived, that the disabled are better off dead.⁷ The Gleitman court directly rejected this rhetoric as an affront to public policy—“the right to life is inalienable in our society…[a] child need not be perfect to have a worthwhile life.⁸” However, courts since Gleitman have not upheld this position with any real strength. Some courts have openly rejected the policy that life is innately valuable, while others have allowed the slow erosion of the principle.⁹ The result is a growing rhetoric that some life is not valued and that the disabled are a sub-class of humanity.¹⁰

Dangerous Rhetoric

The anti-life rhetoric occurs in the proving of a wrongful life or wrongful birth claim.¹¹ Both of these types of claims are premised on medical malpractice tort law which require the plaintiff to establish (1) that the physician owed a duty of care (defined by the standard of care of the related medical community); (2) that the physician breached this duty by “fail[ing] to meet th[e] standard of care” of his profession; (3) that the physician’s breach proximately caused the claimant’s injuries; and (4) that the claimant incurred damages as a result of the physician’s breach.¹²

At the outset, the problem of proving these elements raises a number of issues: What duty does a physician owe an unborn (and in some cases a not yet conceived) child? What is the injury? Who can be said to cause the injury especially when the disabilities are naturally occurring? What damages can be assessed?¹³ To justify an award of damages in a wrongful life case the court must agree (1) that the physician owes a duty to the unborn (this element is escaped in wrongful birth cases); (2) that the injury itself is life, or being born; (3) that the physician caused the injury (thereby breaching his duty) by not informing the parents of the child’s disabilities; and (4) that damages can be assessed for life versus non-life.¹⁴This is exactly what the court did in Harbeson v. Parke-Davis.¹⁵

In that case, Ms. Harbeson was prescribed Dilantin to control her epilepsy while she was trying to conceive. Despite assurance from her physicians that there would be no side-effects, Ms. Harbeson gave birth to two girls with severe birth defects related to her ingestion of Dilantin. Wrongful life actions were brought before the Supreme Court of Washington on behalf of the two girls. The court upheld the cause of action finding that “a duty may extend to persons not yet conceived at the time of the negligent act or omission” limited “by the element of foreseeability,” that injury had occurred in the form of life with fetal hydantoin syndrome, and that if it were “not for the negligence of the physicians, the minor plaintiffs would not have been born,” thus incurring the injury for which damages could be assessed.¹⁶ The court concluded that “wrongful life may be maintained in [the state of Washington].”¹⁷

Creating a “Sub-human” class

In addition to their statements on wrongful life, the Harbeson court also upheld the parental claim for wrongful birth, holding “that parents have a right to prevent the birth of a defective child and health care providers [have] a duty correlative to that right.”¹⁸ To the Harbeson court, the birth of a disabled child was “an actionable injury” for which a parent should be compensated; this is a dangerous holding that threatens to create a very slippery slope.¹⁹

To term children with disabilities “defective” and advocate for their elimination prior to birth is to dangerously re-classify the disabled as less human, to grant these citizens fewer rights, and to attribute a lower value to their lives and contributions to humanity.²⁰ This directly contradicts the public policy advocated by the Gleitman court²¹ and directly violates the Americans With Disabilities Act which was passed in 1990 “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”²² It is a scary rhetorical movement; with recent studies indicating “that more than 80 percent of babies prenatally diagnosed with Down Syndrome are aborted,” it appears that society is finding the rhetoric persuasive.²³ The problem is that characterization of some individuals as less human has occurred throughout history and has always posed a serious threat to the welfare of the entire human race. There is little reason to think this issue will pose any lesser threat.

State of the States:

Where We Are Now

Twenty-nine states “either refused to recognize or limited a wrongful life action.”²⁴

Twenty states rejected wrongful life actions through judicial opinion: Alabama, Arizona, Colorado, Delaware, Florida, Georgia, Illinois, Kansas, Kentucky, Maryland, Massachusetts, Nevada, New Hampshire, New York, North Carolina, Ohio, South Carolina, Texas, West Virginia, and Wisconsin.²⁵

Nine states passed statutes barring or limiting wrongful life: Idaho, Indiana, Michigan, Minnesota, Missouri, North Dakota, Pennsylvania, South Dakota, and Utah.²⁶

Three states have upheld wrongful life as a legal cause of action: California, Washington, and New Jersey.²⁷

Eighteen states have not yet decided the issue: Alaska, Arkansas, Connecticut, Hawaii, Iowa, Louisiana, Maine, Mississippi, Montana, Nebraska, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Vermont, Virginia, and Wyoming.²⁸

Looking to the Future

Unfortunately, the fact that twenty-nine states have rejected wrongful life claims displays a misleading image of the jurisprudence involved. The truth is that the law is far from secure in this area—not only do eighteen states remain undecided on the issue, but the opinions of the twenty-nine are increasingly threatened.²⁹ Anti-wrongful life/birth statutes contain significant exceptions, while the states that bar wrongful life claims by judicial opinion do so for reasons that are disappearing with the spreading acceptance of wrongful birth actions, the increased emphasis on prenatal genetic testing, and the so-called right of every mother not to give birth to a “defective child.”³⁰ Where problems of proof used to prevent wrongful life malpractice suits, current justices are far more willing to stretch the boundaries of injury and causation to define life as an injury and failure, in order to advocate abortion as a cause.³¹ The growing advocacy of prenatal genetic testing, genetic engineering, and abortion are severely undercutting the sanctity of life argument used by the Gleitman court and those that followed it.³²

Thus, there is a growing need for solidification of the sanctity of life position in this area of law. This can best be done through legislative action taken to prevent justices from accepting wrongful life claims and stop their recognition of wrongful birth.³³Widespread adoption of such statutes would be an important step towards ending this series of claims and protecting the policy in the United States to recognize the inherent value and sanctity of all human life.

Endnotes

¹ Gleitman v. Cosgrove, 227 A.2d 689, 690 (N.J. 1967); see also Phillips v. United States, 508 F. Supp. 537, 541 (S.C. Dist. Ct. 1980).

² Willis v. Wu, 607 S.E.2d 63, 65 (S.C. Dist. Ct. 1980).

³Id. at 66.

⁴ Id.

⁵ Id.

⁶ Id.

⁷ Gleitman, 227 A.2d 689; Willis, 362 S.E.2d 63; Turpin v. Sortini, 643 P.2d 954 (Cal. 1982); Harbeson v. Parke-Davis, 656 P.2d 483 (Wash. 1983); Procanik v. Cillo, 478 A.2d 755 (N.J. 1984).

⁸ Gleitman, 227 A.2d at 693.

⁹ See Procanik, 478 A.2d 755; Harbeson, 656 P.2d 483; Turpin, 643 P.2d 954; see also Phillips, 508 F.Supp 537, Willis, 607 S.E 2d 63.

¹⁰ Darpana M. Sheth, Better Off Unborn? An Analysis of Wrongful Birth and Wrongful Life Claims Under the Americans with Disabilities Act, 73 Tenn. L. Rev. 641 (2006) (arguing that wrongful birth and wrongful life claims violate the Americans with Disabilities Act); Kevin R. Costello, Practice Tips: The Limitations of Wrongful Life Claims and Genetic Diagnosis, 30 L.A. Law. 14 (2007) (arguing for a legislative or judicial bar to wrongful life claims because they pose a threat to the increase in prenatal genetic testing).

¹¹ Harbeson, 656 P.2d at 489.

¹² Id.

¹³ Id.; Phillips, 508 F.Supp 537, Willis, 607 S.E 2d 63.

¹⁴ Id.

¹⁵ Harbeson, 656 P.2d at 491.

¹⁶ Id. at 494-7.

¹⁷ Id.

¹⁸ Harbeson, 656 P.2d at 491

¹⁹ Id.

²⁰ See Sheth, supra note 23.

²¹ Gleitman, 227 A.2d at 693.

²²Sheth, supra note 23, at 653.

²³ Id.

²⁴ Willis, 607 S.E.2d at 68-9, 71; see also S.D. Codified Laws §§ 21-55-1 to –4 (2007).

²⁵ Willis, 607 S.E.2d at 68-9, 71.

²⁶Id. at 68-9; §§21-55-1 to -4.

²⁷ Turpin, 643 P.2d at 966; Harbeson, 656 P.2d at 497; Procanik, 478 A.2d at 764.

²⁸ Willis, 607 S.E.2d at 68-9.

²⁹ Id.

³⁰ See id.; Harbeson, 656 P.2d at 491.

³¹ See Phillips, 508 F.Supp 537, Willis, 607 S.E 2d 63.

³² See id.; Costello, supra note 23.

³³ In drafting such statutes, it will be helpful to look to the statutes already passed in Idaho, Indiana, Michigan, Minnesota, Missouri, North Dakota, Pennsylvania, South Dakota, and Utah. The Michigan statute appears to be especially helpful as it bars claims for wrongful life and wrongful birth as well as for wrongful pregnancy and wrongful contraception, and does so in a definitive and clear way. The statute specifies that these prohibitions apply regardless of the health or non-health of the child, but includes exceptions for “intentional or grossly negligent act[s] or omission[s]” such that a physician cannot hide under this law from an otherwise proper medical malpractice claim. Mich. Comp. Laws § 600.2971 (2007).