Wrongful Birth in the United States

Introduction to Wrongful Birth

Wrongful Birth and Wrongful life

Wrongful birth and wrongful life are both recent actions and thus sometimes confused and indistinct from one another. In both cases parents seeks to recover the costs involved as a result of the birth of an unwanted child. Wrongful life claims arise out of negligent sterilisation (e.g. vasectomy: Sherlock Stillwater Clinic, 260 N.W.2d 169) and negligent abortion and are usually founded on a theory of negligent diagnosis or treatment
(Lane v. Cohen, 201 So.2d 804). The action has been held to include cases where a physician advises a couple that they may have a second childe where the second child suffers from the same hereditary disease as the first (Park v. Chessin, 60 A.D.2d 80).

Wrongful Birth and Wrongful life meaning

Wrongful birth

Wrongful birth and wrongful life are similar terms but are not at all synonymous. Wrongful birth concerns the case where a healthy child is born due to the negligence of a physician in failing to diagnose a pregnancy within the time the law allows for abortion. While such claims may be permissible the extent of damages will in no way equivalent to the cost of raising a child. The rationale of the courts is that the burden of raising a child is a mixed one which offsets the damages to the plaintiff.

Wrongful life

See, for more information, the entry about wrongful life.

Cases of wrongful birth or wrongful life can arise in the following fact patterns:
1) Negligent sterilisation: One of the parents is negligently sterilised, and then has a child.
2) Negligent diagnoses of pregnancy, that is a diagnosis of pregnancy does not occur prior to the legal limit for abortion.
3) Negligence in performing an abortion. In such cases the child may be born crippled or in good health.

Wrongful Birth and Wrongful life Claims

It is clear that an injured child injured as a result of a negligent abortion has a right of compensation. Whether the parent or parents of the child also have an independent claim is less clear.

Also controverted is whether the parents have a claim in cases where the abortion does not succeed for the costs of raising the child (so called “wrongful life” claims). Such claims are recognized in California, however the right is the child’s right. In cases where a sterlisation is negligently performed and a child is born English courts do impute tortious liability to the physician. Damages both in America and the UK are normally limited to those arising out of birth defects or other abnormal costs though there is controversy.

French law recognizes the claim of an injured child in cases of a negligent abortion. French law does not however recognise a claim of negligence where the abortion neither succeeds in destroying the fetus nor in fact injures the fetus at all.

Wrongful Birth