Woman Sues For 'wrongful Life'

[Capitalism Forever]

http://dailytelegraph.news.com.au/story/0,...5001028,00.html

Alexia Harriton, now 24, was born deaf, blind and mentally disabled.

She claims her mother's doctor negligently failed to diagnose rubella infection early in the pregnancy and wrongly reassured her that her baby would not be affected.

[Groovenstein]

After reading the article, I wondered what the law on that was in America. After some brief research, I learned that "wrongful life" and "wrongful birth" suits have been around here for the last couple decades. For those of you unfamiliar with American law in general, and particularly American common law, the availability of tort claims in general, and this one in particular, varies by state. See this case, which discusses the theories in some detail and notes that New Jersey first recognized wrongful life (in itself, not the whole country) in 1984. I don't know where it was first recognized in other states. They are similar claims, but wrongful birth is a claim brought by the parents, while wrongful life is brought by the child.

(Note: "Not for publication" just means it's not for publication in certain legal reporters and doesn't have any precedential value. It doesn't mean it's confidential or anything like that.)

[Capitalism Forever]

wrongful life is brought by the child.

Against the parents, or against the doctor?

[hunterrose]

Woman Sues For 'wrongful Life'

At first reading, this sounds quite silly. But that's the world these days

[DPW]

Woman Sues For 'wrongful Life'

At first reading, this sounds quite silly. But that's the world these days

Well, just wait until the remedy: if she wins, the doctor has to kill her!

[Groovenstein]

Against the parents, or against the doctor?

I think it's against the doctor.

[scottkursk]

Well, just wait until the remedy: if she wins, the doctor has to kill her!

You may be on to something Don. This could be like people that sue drug and vaccine companies. If you win, you are no longer provided with any drugs or vaccines that haven't been proven to be 100% safe and completely side effect free.

It shouldn't take more than 1 generation to sweep the leaves out of the genetic pool.

[DavidOdden]

I think it's against the doctor.

So if she prevails, does that mean that the courts will order the doctor to right the wrong, and kill her?

[ed: well that was stupid of me... Don made that same point]

Edited November 11, 2005 by DavidOdden

[Regis]

We've been talking about this some in my Torts class. This type of suit is relatively new and somewhat controversial. The courts (as is common sense) have not wanted to recognize this tort since it is impossible to arive at any sort of objective value in a case of life (no matter how bad) or death. Here is an excerpt from a Law Review article on the issue.

Declaring life "wrongful"

Although jurisdictions have made significant strides in removing the stigma of out-of-wedlock birth, particularly by removing offensive statutory language, numerous causes of action relate to birth. Defendants in such matters include biological fathers who impregnated the plaintiff's mother during a consensual out-of-wedlock encounter, persons and institutions who fail to prevent non compos mentis women from becoming pregnant, and medical professionals who fail to inform parents of potential birth defects, thus allowing the informed opportunity to abort the pregnancy.

The nomenclature of suits brought against medical professionals includes "wrongful birth" actions, which generally are brought by parents for damages suffered by parents, and "wrongful life" suits, which are brought by parents on behalf of their children for damages suffered by the children. Both are variations on the general tort of medical malpractice. The "negligent" act is not causing the birth defect, but failing to recognize and/or inform the parents of it.

Some consider the terms "wrongful life" and "wrongful birth" to be internally contradictory and pose the question, how can a child's very existence be considered a "compensable wrong"? Imposition of liability, in their view, is a declaration that death is preferable to life. The opposing perspective is somewhat aligned with Roe v. Wade and its progeny, that a woman making the decision to bring a child to term has the right to be fully and competently informed by her physician.

Plaintiffs generally have been unsuccessful in actions against persons who "failed" to protect an incompetent woman from becoming pregnant, and courts generally have rejected claims against fathers of healthy children premised on the stigma of out-of-wedlock birth. However, plaintiffs have found significant success in an increasing number of jurisdictions in actions against professionals for failure to identify and warn of birth defects.

[Groovenstein]

Do you have a citation? I might be interested in reading that.

With regard to wrongful life, that just seems silly. If the plaintiff no longer wishes to be alive, it is probably within his power to no longer be alive. Finally, a place where legal "self-help" makes sense!

I don't see wrongful birth as being all that screwy, however. It might be strange to think of having a child as being "harmed," but I don't think so. Having a child is quite the obligation. If you would have made a different decision were you given proper advice, then you have been harmed. You now have a child you would not have had who requires lots of expense. I would think the idea of damage mitigation should apply, though. Perhaps you should have to make reasonable efforts to relieve yourself of the obligation, e.g. trying to find an adoptive parent, and can't recover damages after the point at which those efforts ceased.

[Regis]

No, sorry, I don't have a citation. Didn't think to copy it down. All I did was a Westlaw search under Law Reviews for "Wrongful Life". If I remember correctly this was the 7th article in the results.