Genetic Disability and Legal Action: Wrongful Birth, Wrongful Life

Abstract

Abstract Parents of children born with impairments, birth defects or health condition can sue health professionals for the tort of wrongful birth; the tort of wrongful life is based on the same events but is brought by the child. Wrongful birth actions are often successful, if the parents can show negligence and they have suffered compensable harm. Wrongful life actions, however, are almost always unsuccessful or blocked by legislation, primarily because courts are reluctant to allow that nonexistence is preferable to existence with impairments or find it impossible to calculate what these damages would be. Both actions are objectionable because they force parents, and courts, to devalue the lives of persons with impairments. Some scholars argue that tort law is inappropriate for such actions and that breach of warranty in contracts is more appropriate, as the damage is the unanticipated extra costs resulting from impairments or birth defects. Key Concepts If, because of the negligence of a health professional, a child is born with impairments or birth defects, parents can sue for the tort of wrongful birth and the child can sue for wrongful life. Wrongful birth cases are often successful, if negligence and actual harm are proved; but wrongful life cases are almost always unsuccessful or banned by legislation. Wrongful birth cases, when successful, usually rely on the argument that the negligent health professional breached the duty of professional care owed to the parents, and this led to unexpected additional costs of raising a child. Courts are often reluctant to determine, as is required by wrongful birth and life cases, that a life of a child born with a birth defect or impairment is worse than nonexistence. Wrongful life and birth cases are objectionable on the policy grounds that they force parents and courts to devalue the life of children born with impairments. Scholars argue that wrongful birth and life cases would be better conceived as breach of warranty cases in contracts rather than as torts.