Wrongful birth. What is the damage?

Abstract

Lawsuits for wrongful birth following an unsuccessful sterilization procedure have been based on theories that procedure was performed negligently or that there was a breach of contract to ensure sterility or a breach of warranty. Until recently courts have been reluctant to recognize wrongful birth actions. It was not until California Court of Appeals decided Custodio v Bauer (1967) that a court recognized that it was not contrary to public policy to permit an individual to recover damages against a physician who performed a sterilization procedure unsuccessfully. The courts remain divided but position of courts in cases involving wrongful birth actions appears to be moving from refusal to recognize cause of action to allowing damages that include costs incurred during pregnancy and delivery. The question of whether damages should also include cost of raising and educating a normal and healthy child is being addressed by courts of several jurisdictions and law is undergoing change. The courts have frequently cited American Law Institute Restatement of Law of Torts 920 commonly referred to as the rule w hen determining what damages if any are allowable in cases involving wrongful birth. Persuasive arguments bases on public policy grounds can be made against awarding damages for child rearing in cases involving an unsuccessfully performed sterilization procedure. Also courts have held that assessment of such damages would be so speculative and that such damages are extreme and out of proportion to culpability involved. In cases where court applies benefits rule it is left to trier of fact usually a jury to balance benefit of having child with cost of rearing child. From this jury determines damages to which plantiff is entitled. Courts have criticized benefits rule as being speculative and difficult to apply. It has been held that intangible benefit of a child to its parents cannot mitigate monetary damages. The benefits rule has been rejected by a small number of courts that recognize right of parents to recover damages for cost of a child born after a negligently performed sterilization operation. These courts hold negligent physician may be liable for entire cost of raising child born as a result of negligence.