Many ethicists argue that the injured child hasn’t suffered a recognized harm. Without the negligence, they say the child wouldn’t have been born. Instead, they claim the child should be grateful for having a life, horrible as it may seem, injuries and all. On the other end of the spectrum, lawyers have been trying to validate the claim with little success.
Cases abound where actions by a physician or a healthcare facility result in children born with horrendous congenital disabilities. In most states, the mother is allowed to sue for the damages she suffered incident to pregnancy and birthing – called wrongful birth or wrongful pregnancy claims. Damages for this claim are generally paltry, and fifteen states bar even these cases, either by statute or by precedent.
Generally, the child, often horribly disabled, is forced to incur the effects of the negligence without remedy; their wrongful life claim is expressly rejected in 38 states, either by statute or precedent. Opposition to their wrongful life claims stems from a judicial anathema to abortion as a perceived remedy for physicians’ negligence. With the Dobbs case overruling Roe v Wade and annulling a federal right to abortion, one wonders if judicial anti-abortion sentiment will spread further and with even greater impact. Even in the three states that expressly recognized wrongful life claims – complete recovery wasn’t certain. Until now.
The highly profitable sperm-bank industry.
Here’s one example stemming from negligent acts incident to IVF: For the last seven years, parents have been battling the Xytex corporation, which furnishes frozen sperm (often by mail order). In one chilling case, a sperm donor, James D’Aggeles, impregnated 36 women via Xytex’s services. Marketed as ‘really special,’ D’Aggeles was billed as healthy, an accomplished musician, a graduate student with a master’s degree studying for a Ph.D. in neuroscience who spoke five languages, and boasting an IQ of 160 (the same as Einstein). In reality, at the time, D’Aggeles was a college dropout with a criminal record for burglary and a history of schizophrenia (which can be inherited). Some children sired by Mr.D’Aggeles have already demonstrated signs of severe mental illness (which generally don’t surface till teen-dom). Worse yet, even after discovering the deception and violating its warranties, Xytex failed to notify the mothers.
Xytex’s malfeasance came to light by way of an inadvertent email. Dozens of mothers sued. Some settled. But the children’s wrongful life legal claims have been uniformly rejected, except for one child, where the court allowed very limited recovery but ratified its rejection of the wrongful life claim. [1]
“Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians. Surely the law can assert no competence to resolve the issue, particularly in view of the very nearly uniform high value which the law and mankind has placed on human life, rather than its absence.”
- Becker v. Schwartz.
How can the child claim harm, the court reasoned, if it is alive – and without the negligence, the child would never have been born?
In asking whether children with horrible deformities can sue, the courts' response has been an unambiguous no, denying the child redress for its suffering caused by the negligence of another. That means that the child cannot recover for pain and suffering (general damages), nor for the costs incident to future rehabilitation or therapy (exemplary damages), not even for past objective costs like medical expenses incurred for treatment (special damages). The reasoning: the alternative to birth is non-birth. Birth is judicially held to be “one of the greatest gifts.” If that birth incurs a life of costly treatment or horrendous pain, so be it. There is no descriptor for “non-birth, or its value, but we are left to guess.
Legal Precedents
The predicate for modern IVF cases are earlier wrongful life cases brought against a physician. Here, the defendant’s negligence (late diagnosis) prevented the mother from the opportunity (at the time, a constitutional right) to abort the fetus to prevent the birth of a child sure to be born with severe physical deficits. In one such case, for example, the child was born “suffering paraplegia with no sensation from the hips down and permanent fine and gross motor retardation and mental retardation.” While the mother was allowed to maintain her claims for wrongful birth and the emotional distress claim for watching her child suffer, the child was denied a remedy. {2] That decision, representative of similar cases, revolves around a deep anathema for abortion coupled with a pristine veneration for life- of any type, its quality notwithstanding.
“[S]tates that … prohibit one or more of the parental claims do so largely because of perceived policy concerns. … [as] morality-dominated concerns prevent such legal systems from recognizing the presence of a legal injury or causation.”
Only three jurisdictions, California, New Jersey, and Washington recognize the wrongful life claim where the child can sue. Given the rollback on abortion enunciated by the Dobbs case, the viability of wrongful life claims in the few states allowing them remained to be seen. Now we have the first look.
The case arose in Washington, brought by Yesenia Pacheco, her child, and the child’s father. Ms. Pacheco sought contraceptive services “to prevent the birth of an unwanted child” at NeighborCare, a federal government-run facility. Her care consisted of quarterly injections of Depo-Provera, “a highly effective, injectable contraceptive medication that ‘must be administered on a timely basis every eleven to thirteen weeks.” On Sept.30, 2011, Ms. Pacheco was to receive her regularly scheduled Dep-Provera injection. Instead, the technician injected her with a flu shot. Three months later, when she arrived for her follow-up shot, she was advised of the error. By this time, she was pregnant and gave birth shortly after that.
Tragically, the child was born with perisylvian polymicrogyria (PMG), a congenital disease resulting in “severe speech difficulties, impairment in fine and gross motor skills, recurrent seizures, cognitive and academic impairment,” which require ongoing rehabilitative care, and other therapies.
The trial court held that NeighborCare failed to follow the “minimum… standard of care.…”, finding the United States (the technician’s employer) negligent and awarded the plaintiffs over ten million dollars.
The US appealed, arguing there was no claim that the contraception was sought to avoid the birth of a child with congenital disabilities but rather to avoid child-bearing, generally. Hence, a claim of negligence was not satisfied.
Gaming by Framing
The US also argued that “long-standing principles of tort law” required the court to categorize the matter as wrongful life, birth, or pregnancy, as “the way a claim is categorized determines the scope of the provider’s duty and potential liability.” They claimed that because the plaintiff’s condition did not present any heightened risk that any child would be born with a congenital disability, the damages were “untethered from the duty that was breached.” Removing the legalese, they admitted NeighborCare had a duty to act appropriately but claimed that even if they didn’t act reasonably, the harm wasn’t reasonably foreseeable or related to the breach of their duty.
That some three percent of all births present with congenital disabilities and that all prospective mothers- even those wishing for children- harbor a fear of a child not being born healthy seems to have eluded the defendants. The lower court agreed.
Last month, more than ten years after the matter began, Washington's highest State Court published its final decision. The court was not taken in by the defendant’s wordplay, nor were they swayed by the fact that many courts adopt this terminology, which divides such claims into mutually exclusive categories – in effect, determining the result by the mere wording of the claim. Indeed, the Washington court cleverly refused to pigeonhole the claims as “wrongful life” or “wrongful birth,” thereby avoiding issues of morality and the ‘blessings of life’ argument courts often revert to in denying recovery. Rather, the court called the matter a claim for “negligent reproductive health care.” Determining that children born with congenital disabilities are a foreseeable outcome of any pregnancy, they ruled that NeighborCare’s actions constituted recoverable negligence (or medical malpractice) and that the defendants were liable, laying the basis to ratify the multi-million dollar award.
Coming Full Circle
Early in the development and misuse of pre-natal technologies, a morality-driven view led courts to truncate these claims from conventional malpractice claims. Perhaps it was the advance in technology that sparked a moral backlash? Perhaps it was an anathema to abortion, the go-to remedy when a fetus with congenital disabilities was discovered.
As one court noted 37 years ago:
Wrongful birth claims involve an entirely untraditional analysis by holding that the existence of a human life can constitute an injury cognizable at law and thus judicially prohibited such a claim from legally proceeding.
- Azzolino v. Dingfelder
Another said:
“In evaluating a claim … we must consider the value which our society places upon human life in general and on the lives of children in particular. We instinctively recoil from the notion that parents may suffer a compensable injury on the birth of a child.” - Atlanta Ob. & Gyn. v. Abelson
We have seen how an overabundance of judicial sentiment determines the outcome of cases and impacts individual lives. Hopefully, courts will keep their moral view to themselves - when it harms the lives of individuals. If not, the proponents of antiquated views are in for a rude awakening. One set of legal commentators argued not two years ago that wrongful life claims are unconstitutional under Roe v. Wade, as there is no duty owed to a fetus [3]. I wonder what they would say now that Roe v. Wade has been overruled.
[1] Norman v. Xytex, where the court allowed very limited recovery.
[2] Donovan v. Idant Laboratories
[3] Their reasoning is flawed. The diethylstilbestrol (DES) cases allowed children born to mothers who had taken DES to lodge a claim– even though the negligence happened before they were conceived. The concept of pre-conception injury has been validated.
