Torts of wrongful birth and wrongful life: a review

Abstract

During the past half century reproductive and prenatal technologies have become increasingly sophisticated and accessible to the public. As prospective parents have become more knowledgeable about the various reproductive options available, there has evolved a body of jurisprudence that has defined and defended the exclusive right of individuals to make their own decisions about conceiving and bearing children. This right is now protected under the constitutional umbrella of the right to privacy. If this right is violated through the negligence of one or more health care providers, the allegedly injured parents may sue for the wrongful birth of an unplanned or a defective child. Similarly, a defective child may sue for wrongful life. Both plaintiff parents and plaintiff child seek to recover monetary damages as compensation for their alleged injuries. In wrongful birth cases judicial opinions have moved from an earlier "blessings rationale" through a series of "benefits" cases toward more recent "burdens" decisions. In early suits for wrongful life the courts often held that the child had no valid cause of action and could therefore not be heard in court. More recently, however, some courts have recognized the validity of actions for wrongful life and have decided in favor of the defective children. The most recent judicial decisions suggest that courts may be following a trend to decide in favor of plaintiff parents and children at the expense of the defendant health care providers.