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PREVENTING BIRTH-RELATED TORTS

When a baby is born with a severe genetic disease or intrauterine injury, the parents often blame themselves for the injury. If there is any indication that the physician might have been at fault, this guilt can rapidly turn to anger and a lawsuit. These lawsuits often can be particularly acrimonious because the parents may be driven by an emotional need to shift the guilt as much as by the potential monetary recovery.

There are two potential injured parties when a defective child is born: the parents or guardian and the child. The parents' lawsuit, termed a wrongful birth action, will claim for the extra cost of the medical and other services required to treat their child's condition. The traditional component of this claim is for these expenses during the child's minority, or the child's lifetime, if the child will be permanently incompetent. (See Chapter 4.) The more controversial claim is for the mental anguish for having to observe the child's suffering and for the disruption in family life. The courts are suspicious of such claims, recognizing that even injured children provide an emotional benefit to most parents.

The value of the parents' claim for mental anguish will be based on the court's perception of the set-off of having the child. This set-off is greatest in the failure-of-sterilization cases. Assuming that there was no medical injury to the mother or the baby, the courts have generally found that the benefit of a healthy baby exceeds the detriment of having an unwanted child. Conversely, parents are most likely to recover when the child is badly damaged; an extreme case would be the birth, through the failure of genetic counseling, of a child with Tay-Sachs disease.

The courts have been much more hostile to lawsuits brought by injured children. If the child states a specific damage claim for an expense necessitated by the injury that is not covered by the parents' claim, then some courts will allow for this expense to be recovered. These claims are seen as related to the cases in which the child is affirmatively injured, such as the Rh sensitization cases. (See Chapter 27.) The controversy arises over what are termed wrongful life claims. A wrongful life claim asserts that the child would have been better off not having been born. The set-off and public policy issues are very strongly against recovery on such claims:

Ultimately, the infant's complaint is that he would be better off not to have been born. Man, who knows nothing of death or nothingness, cannot possibly know whether that is so. We must remember that the choice is not between being born with health or being born without it; it is not claimed that the defendants failed to do something to prevent or reduce the ravages of rubella. Rather the choice is between a worldly existence and none at all. ... To recognize a right not to be born is to enter an area in which no one could find his way.[179]

[179]Gleitman v. Cosgrove. 227 A2d 689, 711 (1967).

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