56 Pages Posted: 28 Sep 2006
This article explores the torts of wrongful birth and wrongful life, which primarily arise when a physician or laboratory is negligent in the context of pre-natal genetic testing. In wrongful birth actions, the parents claim that if they had been properly informed of the genetic defect, they would have aborted their now-existing child or prevented his conception. In wrongful life actions, the disabled child brings suit in his own name claiming that it would have been better if he had never existed in the first place. Central to such actions is the child's assertion that his parents rightfully should have and would have aborted him or prevented his conception if timely informed of the defect.
This article is the first to evaluate these torts from a disability rights perspective using the interdisciplinary tools of social disability theory and therapeutic jurisprudence. Social disability theory unravels the images of disability reinforced by legal rules, and therapeutic jurisprudence identifies and evaluates the psychological and social impact of such imagery. The combined analysis provides a unique approach to evaluating the true coercive influence of these torts on individuals with disabilities, their families, and greater society.
Keywords: wrongful birth, wrongful life, tort, disability, discrimination
JEL Classification: J71, J78, K13, K41
Suggested Citation: Suggested Citation
Hensel, Wendy Fritzen, The Disabling Impact of Wrongful Birth and Wrongful Life Actions. Harvard Civil Rights-Civil Liberties Law Review, Vol. 40, p. 141, 2005. Available at SSRN: https://ssrn.com/abstract=932688