On Wrongful Birth

I don't wanna die (Ooh)
I sometimes wish I'd never been born at all
[Sweet guitar solo]
Queen, “Bohemian Rhapsody”

In 1964, an outbreak of rubella swept across the United States, with over 1.8 million reported cases [1]. In 1969, when the rubella vaccine was approved and made public, vaccination programs took on immense enrollment demand, soon vaccinating over 40 million children against the disease over the next four years. But before that vaccine, there was only fear. Research from prior decades and ongoing studies on large samples of pregnant women during the outbreak had revealed to the American population that infants born to mothers who had contracted rubella during their pregnancies often contracted a wide range of health problems [2] [3]. Over ninety percent of children born to mothers infected early on in their pregnancy would have such birth defects, and one-third of these children would die before their first birthday [4]. Women exposed to rubella during their pregnancy were thus faced with an agonizing choice: carry their pregnancy to term and risk giving birth to a child with profound disabilities or abort their child.

Sandra Gleitman had met with her obstetrician, Dr. Robert Cosgrove, in April of 1959 [5]. She told him that she had contracted rubella a month ago, in March. He told her that she was two months pregnant. Not to worry, he said: rubella would have no effect on her fetus. She then went for monthly visits to army doctors in Georgia where her husband was stationed, then to another obstetrician, Dr. Dolan, disclosing each time her rubella diagnosis and receiving each time an assurance that her fetus would develop normally and her child would be born without issue. And on November 25th, she gave birth to a baby boy, Jeffrey Gleitman. Though for the first few weeks he seemed normal and healthy, he soon developed severe defects in his sight, hearing, and speech abilities, later in life being declared legally blind and deaf.

There was, in New Jersey, an established right to sue for prenatal torts, made law there by a case in which a child in gestation received injuries when his mother was in an automobile accident [6]. The New Jersey Supreme Court had written:

“The semantic argument whether an unborn child is 'a person in being' seems to us to be beside the point. There is no question that conception sets in motion biological processes which if undisturbed will produce what every one will concede to be a person in being. If in the meanwhile these processes can be disrupted resulting in harm to the child when born, it is immaterial whether before birth the child is considered a person in being. And regardless of analogies to other areas of the law, justice requires that the principle be recognized that a child has a legal right to begin life with a sound mind and body.”

But in Smith, it was the conduct of the defendants that had caused the injury. The Court had simply assumed that the child would otherwise have been healthy but for the vehicle accident, and so damages for negligence were calculated by finding the difference between his injured condition and the otherwise healthy condition in which he would have been born.

So, in 1967, the New Jersey Supreme Court was asked to hear a new kind of case entirely: both baby Jeffrey and his mother Mrs. Geitman were suing their doctors for torts which came to be known as wrongful life and wrongful birth, respectively. At the time, there was nothing that either Dr. Cosgrove or Dr. Dolan could have done to prevent baby Jeffrey from being born birth defects, but by not informing Mrs. Geitman of that possibility, they had denied her the opportunity to seek an abortion. So, by bringing these suits, Mrs. Geitman was required, by law, to state that if she had been informed of the risks of rubella causing birth defects, she would have aborted her child, and the infant was required, by law, to state that he should in fact never have been born.

The District Court had tossed both cases right away, but on appeal, the Supreme Court wrestled with it more seriously. Ultimately, the Court rejected Jeffrey’s claim:

“The infant plaintiff would have us measure the difference between his life with defects against the utter void of nonexistence, but it is impossible to make such a determination. This Court cannot weigh the value of life with impairments against the nonexistence of life itself . . . We hold that the first count of the complaint on behalf of Jeffrey Gleitman is not actionable because the conduct complained of, even if true, does not give rise to damages cognizable at law . . . It is basic to the human condition to seek life and hold on to it however heavily burdened. If Jeffrey could have been asked as to whether his life should be snuffed out before his full term of gestation could run its course, our felt intuition of human nature tells us he would almost surely choose life with defects as against no life at all.”

and rejected Mrs. Gleitman’s, though with comparatively more thought:

Mrs. Gleitman can say that an abortion would have freed her of the emotional problems caused by the raising of a child with birth defects . . . When the parents say their child should not have been born, they make it impossible for a court to measure their damages in being the mother and father of a defective child . . .

The sanctity of the single human life is the decisive factor in this suit in tort. Eugenic considerations are not controlling. We are not talking here about the breeding of prize cattle. It may have been easier for the mother and less expensive for the father to have terminated the life of their child while he was an embryo, but these alleged detriments cannot stand against the preciousness of the single human life to support a remedy in tort . . .

Though we sympathize with the unfortunate situation in which these parents find themselves, we firmly believe the right of their child to live is greater than and precludes their right not to endure emotional and financial injury. We hold therefore that the second and third counts of the complaint are not actionable because the conduct complained of, even if true, does not give rise to damages cognizable at law; and even if such alleged damages were cognizable, a claim for them would be precluded by the countervailing public policy supporting the preciousness of human life.”

Six years later, Roe v. Wade would establish a woman’s right to seek an abortion in the United States [7]. Not a single wrongful birth case pre-Roe was successful [8]. But just two years after Roe, in 1975, Jacobs v. Theimer would mark the first wrongful birth case finding for the plaintiff-mother, who later was awarded $120,000.00 after settlement, which was held in trust for the medical care of her child born with severe disabilities due to her contracting rubella during her pregnancy [9]. But other courts continued to dismiss claims for wrongful birth in similar circumstances, often chastising mothers for daring to assert that they might have aborted their child had they been given the fully-informed chance.

In scholarly spheres, debate on whether claims for wrongful birth might be justifiable has evolved more generally from a proxy-issue for abortion rights to a broader cogitation on prenatal testing, disability rights, and the joys and challenges of raising a disabled child. On one hand, courts straightforwardly accept prenatal torts in claims for motor vehicle accidents on the assumption that a child will and should be born healthy, and courts obviously do not let slide negligent treatment of the already-born for illnesses that can progress into disability, like diabetes or polio. On the other, not all agree that the sheer existence of a disabled child should be straightforwardly avoided or warrant monetary damages of some sort:

“David Wasserman, a bioethicist at the University of Maryland, wrote a paper with Asch titled ‘Where Is the Sin in Synecdoche?’ in which the two argue that prenatal testing is morally suspect because the system leads people to reduce fetuses to a single trait, their impairment. ‘Since time immemorial people have felt fear and aversion toward people with impairments, but these tests legitimize those fears,’ Wasserman says. Parenthood, according to Wasserman, is and should remain a gamble.” [10]

The trouble, of course, is that a mother of a disabled child can both deeply love and cherish them and be greatly burdened by caring for them. But, for a claim for wrongful birth legally to prevail, a plaintiff-mother is literally required to testify, in court, before a jury of her peers, that had she known of her child’s birth defect before her child was born, she would have terminated her pregnancy. She is required to state this in every deposition taken, in every affidavit submitted, and in the initial complaint she files with the court. It is in the name: the birth itself was wrong. The only way to establish her damages for negligent care is to have a comparable alternative to her present reality of having a disabled child.

Jennifer Gann highlights this tension:

“Parents like me often feel betrayed by their child’s cystic-fibrosis diagnosis: Maybe there was medical malpractice, maybe an inherited mutation so rare it wasn’t detected prenatally. Other parents have chosen to avoid any kind of testing, believing it’s their destiny to embrace whatever God or fate or genetics deals them. I’m horrified by the sanctimony that often accompanies this acceptance, especially when it’s admired, especially when it’s offered up by mothers who don’t “believe” in prenatal testing or who have more than one child with cystic fibrosis. The women who willingly made choices that were never presented to me and chose a child’s suffering: Sometimes I hate them.

I also hate the women who were supposed to care for me. I hate the faceless people at the lab. I hate them ferociously, the way you hate a family member or the closest of friends. I hate them the way you hate a spouse, for all the bad they caused, and how closely tied that bad is with good. I hate them for what feels like the slyest of deals: While my family’s life is now shaped around a disease I would never willingly bring into the world, we are a family because of them — unwittingly, they gave me my most precious gift. I hate them for making me a mother whose biggest mistake was becoming one.

My son has blue eyes, curly blond hair, slightly crooked teeth. He’s daring, most of the time. He’s afraid of doctors and anyone in a flapping coat. I want the people I hate to know these details about him. I want them to be able to smell his soft breath in the morning, just before I strap a mask over his face so he can inhale medication. I want them to fathom telling a child no amount of treatment can make his disease go away, that people with CF are so likely to pass bacteria between each other they can’t be in the same room, that most men with CF are infertile, that every drinking fountain holds the risk of a lung infection. I want them to feel all the moments in a life affected by this disease and experience what it’s going to be like, to be Noah. I want to take all the pain and disappointment he’ll have and drown them in it.

. . .

I love my child just the way he is is a sentiment often put forth, fiercely, by the parents of sick or disabled kids. It’s not hard to understand the intention — every parent wants to make it clear that no challenge renders their love conditional. But given the choice, if one existed, I would have Noah another way: healthy. Wrongful birth doesn’t grant anyone that choice; like Dortha said, no legal outcome can ever make your child well.

Having to put this kind of pain into words is, to me, the hardest part of wrongful birth. To have to specify what would make me terminate a pregnancy, to imagine my life today without a toddler. There’s no escape from knowing that the opportunity for mercy quietly slipped by and that something as idiotic as a clerical error is responsible. But the most consuming, language-defying pain is just the other side of the most overwhelming joy. There are no words for the feeling of walking down the street with the person I love most, no words to describe why I wanted to have a child in the first place. After all this pain and humiliation and anger boiled down to records and money and who did what, the love I have for my son feels like the one thing that can’t be taken from me. It’s what I know more than anything in this world.” [11]

Is it wrong for a parent of a disabled child to wish that their child were “healthy” or “normal”? Is there a contradiction between loving someone and feeling burdened by them?

Actions for wrongful birth can be seen as a “parental unburdening,” one which allows for families to afford more supportive care of a disabled child [12]. The cause of action brought in a wrongful birth case requires the mother to testify that she would prefer that her disabled child never have been born; the result of an action for wrongful birth often augments that same disabled child’s life in material ways and partially relieves the child’s parents of the significant challenges of raising and caring for a child with disabilities.

In jurisdictions that do allow these claims, courts generally award damages only for actual long-term medical expenses, not parental emotional distress, on the basis that awards must not be overly speculative. Emotional distress awards are regularly granted for more ‘traditional’ medical malpractice actions, and in wrongful death and wrongful imprisonment cases, too, but courts oft shy away from them in wrongful birth actions for fear that damages are too speculative in nature. One example of an award granted for emotional distress in a wrongful birth action reveals the paradox of pursuing those claims:

“. . . in Phillips v. United States, the court used parental love to offset emotional distress damages against a medical center for failing to advise, counsel, and test the plaintiff-parents for the risk of having a child with Down syndrome. The court determined that the plaintiffs were entitled to $500,000 in emotional distress damages because the mother experienced “anguish” due to “her child’s condition,” which required her to sit up with him at night when he would “turn blue around the lips,” watch him throw up three to four times a day, and caused her to feel upset “knowing that he’ll never be able to do the things that normal kids can do and not being able to do anything to change it.” As a result, the mother “gave up all social activity, became nervous, and resorted to overeating.” Additionally, the father described “feelings of anger, outrage, and disappointment, as well as gastrointestinal problems requiring medication.”

The court balanced the mother’s “heartache” against her admission that she loved her son and that he was “the sunshine of [her] life” and reduced the emotional distress damages by 50 percent, to $250,000. Without providing a concrete rationale for the amount of reduction, the court reasoned that the benefit rule “should not improperly restrict the scope of permissible damages” and that, in accordance with traditional tort principles, any benefits from defendant’s negligence may offset the detriments.””

In other words, if Mrs. Phillips did not express love for her child on the stand, she may have been awarded more in emotional damages. At the same time, most juries do not look favorably upon mothers would eschew expressions of love for their children.

Today, even post-Dobbs, about half the states do allow actions for wrongful birth, and a dozen explicitly ban it. Some states that guarantee abortions as a right, and protect it in their state constitutions, still maintain bans on bringing suit under claims of wrongful birth. Claims for wrongful life continue generally to fail as a matter of law.