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, which can be for
negligence or for wrongful birth, 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. The more
controversial claim is for the mental anguish of 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. 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. [
Gleitman v.
Cosgrove, 227 A.2d 689, 711 (1967);
Berman v. Allan, 80 N.J. 421, 404
A.2d 8 (N.J. Jun 26, 1979); and
Hummel v. Reiss, 129 N.J. 118, 608
A.2d 1341 (N.J. Jul 21, 1992).]
