Wrongful Birth Suits: What's In a Name?

by Sherry F. Colb

In my Verdict column for this week, I discuss the legislation currently pending in Texas to abolish the cause of action for wrongful birth.  A wrongful birth suit is one in which the plaintiff claims that had the defendant done what he was supposed to do (e.g., a doctor notifying a pregnant patient that her fetus shows signs of severe abnormalities), the plaintiff would have terminated her pregnancy and the child would accordingly never have been born.  The plaintiff, if successful, can recover expenses occasioned by the birth of the child whom she would not have had in the absence of the defendant's wrongful conduct (or wrongful omissions).  In my column I discuss the implications of wrongful birth suits, both for issues surrounding abortion and for the symbolic meaning of such suits for people living in the world today who suffer from severe disabilities (of the sort for which the plaintiffs in such suits would have terminated their pregnancies).

In this post, I want to focus on the names that we give the lawsuits at issue, "wrongful birth" or "wrongful life" suits.

The implicit (and not all that implicit) suggestion in the names is that the birth or the life of the person in question should never have come into being and is wrongful in some way. The names suggest, in other words, that some people who currently inhabit our world are invalid or unwanted and should never have joined us here on this earth.  To some extent, this suggestion is unavoidable with such suits, because the plaintiffs are claiming that the wrongdoing of the defendant or defendants led to a birth or life that should never have happened.  That is the essence of the suit, and the damages are for the costs associated with the child's existence, costs that would not have been incurred had there been a disclosure followed by an abortion.

Yet we could use a different and less insulting name to refer to such lawsuits.  We could, for example, consider these suits as a species of medical malpractice.  As a physician exercising due care, a doctor would be required to tell her patient about any potential conditions that she discovers or should have discovered upon examining her, whether those conditions afflict the patient or the patient's growing embryo or fetus.  The doctor would then have to provide a patient with information about treatment options and prognosis.

Having alerted her patient, the doctor will have met her obligation.  Failing to disclose, however, would result in liability for the cost of the disability for the patient or parents, if the cost could have been avoided with the information that the doctor failed to disclose.  This could mean that curative steps might have been taken to avoid the disability or it could mean that the pregnancy could have been terminated.  In this way, a name like "wrongful life" or "wrongful birth" would not be highlighting or emphasizing the idea that the child should not have been born.  The problem, on this approach, is that the doctor failed to disclose, not (or not only) that the child was born.  Abortion, then, would be only one of the various potential ways in which the patients wrongfully denied information might have reacted had they learned what they were entitled to learn.

One might respond to this proposal that we should call things what they are and that the reason that parents might be able to collect a huge amount of money in response to this particular kind of malpractice suit is the fact that the child--and not his disability alone--could have been prevented.  Be that as it may, the names we use matter and convey our attitude towards the children resulting from pregnancies that perhaps would have been terminated if doctors had done what they were supposed to do.  Calling the misconduct "malpractice" rather than having a special name signifying the wrongfulness of a child's life or birth could go a long way in avoiding a toxic and unnecessary message about innocent people who, now that they are here, deserve our compassion and respect.