According to the Bozeman Chronicle (< click for story) , a couple in Montana are attempting to create new precedent by suing for the “wrongful birth” of their child, who was diagnosed with cystic fibrosis.
For some background information regarding the legal hurdles facing the Montana couple, all states permit wrongful death lawsuits (not to be confused with a survival action). A “Wrongful Death” lawsuit is a lawsuit generally filed by the next of kin (close relative) of someone who was unfortunately killed. Wrongful death lawsuits are creatures of state statutory law because a claim for the wrongful death of another was not a recognized theory for legal recovery under the common law. Under common law, once a person was killed or died, their cause of action died with them. No one could sue to recover the damages resulting from the untimely death under common law. This forced legislatures across the country to create statutory rights for defined relatives to recover. This was necessary because the common law perversly created a situation that worked to a negligent party’s benefit and mitigated its liability if it committed the ultimate wrongful act of humanity: death.
Additionally, most states recognize a wrongful pregnancy cause of action under a theory of negligence. For example, say a doctor doesn’t correctly perform a vasectomy or tie a woman’s fallopian tubes and subsequently the woman gets pregnant. In that case, the woman could sue to get reimbursed for the costs of the pregnancy, plus other damages for having to go through the pregnancy.
In the Montana case, the couple’s lawsuit for wrongful birth is different from a wrongful pregnancy theory. Wrongful birth generally would allow the couple to recover costs for the child’s future medical case and possibly other costs that are over and above the normal costs incurred while rearing a child. The Montana couple are claiming that had they known their child would have been born with abnormalities, it would have terminated the pregnancy. Wrongful birth is thus the inverse of a wrongful death lawsuit. They are seeking damages for “emotional distress and . . . [the] healthcare costs associated with caring for their child who was born with the fatal disease.” The problem then becomes whether the common law would condone a wrongful birth lawsuit through the standard negligence theory of recovery, or whether the State legislature must create the legal rights as it did with wrongful death lawsuits.
The hospital responded to the lawsuit by saying that ”there is no precedent for a ‘wrongful birth’ lawsuit in Montana and that the issue raises complex political and moral questions that lawmakers should address, not the court system.”
Certainly, the lawsuit raises social and moral issues for all society. The real issue then is whether the parents’ lawsuit should be treated like a wrongful death claim under common law, meaning that the law will not permit the theory of a “wrongful birth” absent an express statute permitting the lawsuit. Most states don’t have statutes explicitly permitting legal recoveries for wrongful birth. Ultimately, it will come down to whether the court will create a new legal theory for recovery under wrongful birth, or if it will dismiss the case and leave it to the legislature to create the legal avenue to vindicate “wrongful birth.”
The couple further allege that the doctor “failed to properly inform the couple of simple blood tests they could have taken to determine if they are carriers of the recessive gene that, if positive, would give their child a 25 percent chance of having cystic fibrosis.” They further claim that ”had the [baby's] tissue been tested for cystic fibrosis, it would have tested positive for the disorder.”
The law for wrongful birth is developing and unsettled through the United States. Some states that permit wrongful birth allow the recovery of expenses to raise the child, but any recovery is offset against the benefits enjoyed in raising children. Other states absolutely refuse this type of lawsuit on the because having a child, no matter how disabled, has intangible benefits that cannot be monetized.
For a fictional book regarding wrongful birth and a fictional family’s attempt to reconcile the internal struggles of having an abnormal child–a child they no doubt love–while simultaneously suing the hospital, saying that they would have terminated the child had they known of the abnormalities, read Handle with Care by Jodi Picoult.