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

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.