Re-Birthing Wrongful Birth Claims in the Age of IVF and Abortion Reforms

Abstract

Claims for reproductive negligence typically fall under two rubrics. Claims by the wrongfully birthed child are almost never countenanced, while claims by the wronged parent generally are. Nevertheless, in these wrongful birth claims, usually recovery is strictly limited. While damages for rearing a child with congenital ailments may be allowed, those for raising healthy child are not. The bases for denying healthy child care are couched in policy grounds and derive from an anathema of abortion, a view of the sanctity of life and an outmoded judicial ipse dixit that child-rearing is one of life’s greatest gifts for which damages will not lie, even if such result shields a clearly negligent defendant. Here, I first point out that current vogue restricting abortion may have an adverse impact on efforts seeking to reverse this approach. I further argue that whatever gifts accrue to healthy child-rearing also may apply to non-healthy children, and the health or disability of the child should not be relevant to the outcome of these claims. And finally I propose a novel approach: broadening the damage ambit by noting that the birth of the child is not the only harm accruing to the parents. A court’s focus on only the birthed child and parents’ bliss in raising her ignores the impact of the negligence on the family unit as a whole, and on the parents as individuals and denies the individual plaintiffs their rights of autonomy, liberty and the pursuit of happiness.

Keywords: wrongful life, wrongful birth, abortion, IVF, relational negligence, relativistic negligence, feminist tort, autonomy, liberty, pursuit of happiness, freedom, personal freedom, public policy, sanctity of life

JEL Classification: I14, I12, K13, K32