Re-Vitalizing Wrongful Birth Claims: A Feminist-Tort Approach

11 Pages Posted: 2 May 2019

See all articles by Barbara Pfeffer Billauer

Barbara Pfeffer Billauer

Institute of World Politics; International Program in Bioethics, U. of Porto; Foundation for Law and Science Centers, Inc.

Date Written: April 7, 2019

Abstract

Wrongful birth claims are brought to compensate parents for damages incident to the birth of an unwanted child occasioned by physician negligence. These cases often apply in the context of failed sterilization or failing to advise that the fetus is suffering a genetic defect, thereby foreclosing the option of abortion. Generally, damages are limited to harm occurring peri-pregnancy. Claims for child maintenance are routinely denied on the basis of an imaginary offset conjured by judges: the joys of child-raising compensate for the costs of child-rearing.

This article discusses why such reasoning deprives the mother of her right of autonomy and raises other arguments for allowing such damages from a feminist tort perspective. I further raise the inclusion of a heretofore unrecognized harm: the effect of the unwanted child's birth on its siblings. The drain of an additional child on family resources, both emotional and financial, affects not only the parents, but negatively impacts the entire family unit. This additional harm vitiates any possible offset - even if one, arguendo, can be said to exist.

Keywords: wrongful birth, sterlization, unwanted child, autonomy, offset, joys of child-raising, feminist tort, experience, eggshell plaintiff

JEL Classification: I12, I14, K13, K35

Suggested Citation

Billauer, Barbara P., Re-Vitalizing Wrongful Birth Claims: A Feminist-Tort Approach (April 7, 2019). Available at SSRN: https://ssrn.com/abstract=3367877 or http://dx.doi.org/10.2139/ssrn.3367877

Barbara P. Billauer (Contact Author)

Institute of World Politics ( email )

1521 16th St NW,
Washington, DC
United States
+1 202-462-2101 (Phone)

International Program in Bioethics, U. of Porto ( email )

Rua Dr. Roberto Frias
4200-464 Porto
Portugal

Foundation for Law and Science Centers, Inc. ( email )

1020 16th Street NW
Suite LL1
Washington, DC 20036
United States
972 54 344 6055 (Phone)

Register to save articles to
your library

Register

Paper statistics

Downloads
30
Abstract Views
191
PlumX Metrics