'Wrongful Birth' and the Paradox of Parenting a Child With a Disability

57 Pages Posted: 22 Mar 2018 Last revised: 16 Aug 2018

Date Written: March 21, 2018

Abstract

“Wrongful birth” is a controversial medical malpractice claim raised by the mother of a child born with a disability against a medical professional whose failure to provide adequate prenatal information denied her the chance to abort. Plaintiff-mothers are required to testify that, but for the defendant’s negligence, they would have terminated their pregnancy. Accordingly, alongside pro-life activists, disability rights advocates have opposed “wrongful birth” claims for stigmatizing and discriminating against people with disabilities by framing their very existence as a harm. Despite plaintiff-mothers’ need for caretaking resources, scholars have recommended solutions ranging from the wholesale elimination of the wrongful birth claim to the curtailment of damages. To the extent scholars and the media have acknowledged mothers at all in the wrongful birth discourse, often it has been to blame and shame them for allegedly rejecting their children. They have paid little attention to the ways wrongful birth jurisprudence forces mothers to disavow their children in court, and thereby to forfeit the “good mother” ideal, in exchange for the possibility of securing necessary resources for their children. Commentators who question plaintiff-mothers’ maternal devotion exacerbate the psychological toll the law already imposes. This Article shifts the blame from mothers to the legal system. While wrongful birth proceedings portray mothers’ feelings about their children as categorically negative, real life accounts and social science findings reveal the true paradoxical, or conflicting, experiences of all mothers, including plaintiff-mothers raising children with disabilities. To acknowledge this complex reality and mitigate the emotional strain of bringing a wrongful birth claim, this Article proposes several legal reforms: (1) broadening the analysis of emotional distress to reflect and legitimize mothers’ paradoxical feelings about their children; (2) reframing the harm to mothers as loss of reproductive choice rather than as the birth of a flawed child, and, accordingly, expanding available economic damages to include plaintiff-mothers’ unexpected childcare responsibilities; and (3) educating plaintiffs’ attorneys to empathize with the emotional aspects of mothers’ litigation experiences and to counsel mothers accordingly. Today’s approach to “wrongful birth” claims, which both stigmatizes disability and strains caretakers, demands urgent reform.

Keywords: Torts, Disability, Psychology and Law

Suggested Citation

Yakren, Sofia, 'Wrongful Birth' and the Paradox of Parenting a Child With a Disability (March 21, 2018). Fordham Law Review, Vol. 87, 2018, Available at SSRN: https://ssrn.com/abstract=3146669

Sofia Yakren (Contact Author)

CUNY School of Law ( email )

2 Court Square
Long Island City, NY 11101
United States

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