Wrongful Life Actions Research Articles

“Wrongful Life”: Βιοηθικές και Νομικές προεκτάσεις

The present manuscript focuses on the special features of “wrongful life” cases and the ethical philosophical questions they arise. Our main goal is to conclude whether the handicapped child should be compensated by the doctor who negligently failed to diagnose or inform the child’s parents about potential birth defects. Is the doctor morally responsible? Should he be held liable for the existence of the impaired child? Can a life ever be considered a source of damage? Is handicapped life of less value?Through the analysis of moral and legal theories as well as the comparative overview of the international- basically European and Greek case law we find out that the moral evaluation of the doctor’s behavior is in coincidence with the general practice of courts to dismiss wrongful life lawsuits. Contrary to the argument for recognizing wrongful life actions based on the lack of social support structures for the vulnerable and retarded children, we conclude that their financial support is a matter of social policy and it should not be passed on the doctor who did not cause the impaired condition.

Are Wrongful Life Actions Threatening the Value of Human Life?

Most courts around the world have been refusing wrongful life actions. The main argument invoked is that the supposed compensable injury cannot be classified as such, since life is always a blessing no matter how hard and painful it is.In opposition to mainstream scholars and the dominant case law, this article sustains that life must be distinguished from living conditions, the former being the real injury at stake, since some living conditions are so intolerable that in themselves they justify a compensation within wrongful life actions.

Preimplantation and prenatal diagnosis, wrongful birth and wrongful life: a global view of bioethical and legal controversies.

Prenatal diagnosis based on different technologies is increasingly used in developed countries and has become a common strategy in obstetric practice. The tests are crucial in enabling mothers to make informed decisions about the possibility of terminating pregnancy. They have generated numerous bioethical and legal controversies in the field of 'wrongful life' claims (action brought by or on behalf of a child against the mother or other people, claiming that he or she has to endure a not-worth-living existence) and 'wrongful birth' claims (action brought by the mother or parents against the physician for being burdened with an unwanted, often disabled child, which could have been avoided). The possibility which exists nowadays to intervene actively by programming and deciding the phases linked to procreation and birth has raised several questions worldwide. The mother's right to self-determination could be an end but whether or not this right is absolute is debatable. Freedom could, with time, act as a barrier that obstructs intrusion into other people's lives and their personal choices. Therapeutic choices may be manageable in a liberal sense, and the sanctity of life can be inflected in a secular sense. These sensitive issues and the various points of view to be considered have motivated this review. Literature searches were conducted on relevant demographic, social science and medical science databases (SocINDEX, Econlit, PopLine, Medline, Embase and Current Contents) and via other sources. Searches focused on subjects related to bioethical and legal controversies in the field of preimplantation and prenatal diagnosis, wrongful birth and wrongful life. A review of the international state of law was carried out, focusing attention on the peculiar issue of wrongful life and investigating the different jurisdictional solutions of wrongful life claims in a comparative survey. Courts around the world are generally reluctant to acknowledge wrongful life claims due to their ethical and legal implications, such as existence as an injury, the right not to be born, the nature of the harm suffered and non-existence as an alternative to a disabled life. Most countries have rejected such actions while at the same time approving those for wrongful birth. Some countries, such as France with a law passed in March 2002, have definitively excluded Wrongful Life action. Only in the Netherlands and in three states of the USA (California, Washington and New Jersey) Wrongful Life actions are allowed. In other countries, such as Belgium, legislation is unclear because, despite a first decision of the Court allowing Wrongful Life action, the case is still in progress. There is a complete lack of case law regarding wrongful conception, wrongful birth and wrongful life in a few countries, such as Estonia. The themes of 'wrongful birth' and 'wrongful life' are charged with perplexing ethical dilemmas and raise delicate legal questions. These have met, in various countries and on certain occasions, with different solutions and have triggered ethical and juridical debate. The damage case scenarios result from a lack of information or diagnosis prior to the birth, which deprives the mother of the chance to terminate the pregnancy.

A critical disability theory analysis of wrongful life/birth actions in Israel

Wrongful life/birth actions raise difficult questions. The Israeli Supreme Court of Justice’s recent ruling in the case of Hamer (2012) reflects these difficulties. The court decided that wrongful life actions should not be admitted. By contrast, wrongful birth actions were approved. This paper offers a critical disability theory analysis of the decision in Hamer. The author claims that the court’s refusal to acknowledge wrongful life actions constitutes an important positive legal narrative. Nevertheless, the judicial narrative provided in other parts of the decision makes only a marginal contribution to the positive social structuring of disability. Therefore, the author suggests a new approach that is based on the parents’ right to autonomy. The author claim that this position does not involve negative connotation towards people with disabilities and enable the court to compensate the parents for the damages they suffered.

Liability of medical practitioners to children born with congenital defects - a discussion of Stewart v. Botha : forum

South African law recognises claims against medical practitioners by mothers whose children have been born with congenital defects, the so-called 'wrongful birth actions'. The basis of such claims is that if the medical practitioner had detected and informed the mother of the fetus's congenital defects, she would have terminated the pregnancy and the child would not have been born and suffered from the defects and caused her additional expense. The Supreme Court of Appeal in Stewart v. Botha (340/2007) [2008] ZASCA 84 had to consider whether a child born with congenital defects can himself or herself sue the medical practitioner for allowing the child to be born, the so-called 'wrongful life actions'. The court held that wrongful life actions should not be recognised in our law because the core of such cases is to require the court to decide whether it is preferable, from the child's perspective, not to have been born at all.

Reason, Resources, and Wrongful Life: Using Social Psychological Models of Health and Evolutionary Theory to Assess Behavioral Claims in Wrongful Life Litigation

The central behavioral claim in Wrongful Life actions is that a mother would have chosen to have a therapeutic abortion rather than given birth to a severely impaired child. Wrongful Life actions are brought by or on behalf of infant-plaintiffs who are suing the physicians who allegedly negligently allowed them to be born by failing to provide the mother with sufficient information about the health of her fetus while she was still legally able to terminate the pregnancy. Social psychological models of health behavior and evolutionary theory, including inclusive fitness, parental investment, the theory of reasoned action, and the theory of planned behavior, are addressed to assess the claim that a child, due to its severe defects, could be better off dead and that the mother would have willingly terminated the pregnancy if full information was disclosed. These theories ultimately support the behavioral claims made in Wrongful Life actions.

Wrongful Life: The Problem of Causation

The paper considers the status of the wrongful life action particularly in the light of the recent acceptance of such actions in continental Europe. It is considered that the hurdle of causation is still not adequately overcome in these cases and, in a search for an answer to the difficulty, the author re-examines the Canadian case of Cherry v Borsman. This case was originally thought of as one of wrongful life associated with a negligently performed abortion and the paper attempts to overcome the problems of causation by comparing and contrasting the roles of the genetic counsellor and the abortionist. While the attempt is by no means wholly successful, it also serves to draw attention to some significant differences between wrongful life actions based on physical and mental disability in the neonate.

Wrongful birth and wrongful life actions.

Wrongful birth and wrongful life actions.

From Sancitity to Screening: Genetic Disabilities, Risk and Rhetorical Strategies in Wrongful Birth and Wrongful Conception Cases

This analysis scrutinises the rhetorical strategies used by judges in wrongful life and wrongful birth actions as evidence for the assertion that the judicial reading of public policy in such cases has undergone a significant shift which is likely to accelerate as genetic knowledge grows and health care resources shrink. The implications of the predicted move towards increased genetic testing of prospective parents are traversed in relation to feminist analyses of the impact of genetics on reproductive technology. These are viewed as forming a nexus with the current social constructions of disability and the contemporary cultural preoccupation with risk, in a context of the increasing commercial importance of genetic information. It is argued that women cannot make free and informed choices about genetic testing and pregnancy unless legal and social mechanisms which protect those choices are in place.

The law's response to reproductive genetic testing: questioning assumptions about choice, causation and control.

The law's response to reproductive genetic testing depends on a number of assumptions about choice, causation and control which need to be questioned. From the preconception stage forward, the illusion of choice may raise such fundamental questions as the woman's choice not to be tested, limits on genetic information, and the availability of reproductive options. In turn, assumptions about choice raise questions about the responsibility for results and the connection between choice and causation in the context of wrongful birth and life actions. Assumptions made about control over reproductive choice and over causing 'harm', will impact on the development of future law.

Impaired children and tort remedies: the emergence of a consensus.

The “medical malpractice crisis” in the 1970s involved not only a greater number of suits, but also the emergence of new sorts of claims against medical practitioners. One such claim was the wrongful birth suit, where parents sued their physician on their own behalf for negligence that resulted in the birth of an unwanted child. A related claim, wrongful life, involved a suit brought on behalf of a defective infant against a physician or laboratory that failed to give correct information about a potential defect to the parents. These claims have been the subject of much controversy for judges and commentators.The debate over wrongful life suits involving “impaired” children continues. Courts in Michigan have recently rejected the wrongful life cause of action, while, in Washing ton, the action has been allowed. Some academic critics have also continued to oppose the wrongful life action. In a recent commentary in the pages of this journal, one critic wrote: “Wrongful life actions, by whatever name they may be called, accord with neither logic nor experience, and should not be allowed.”