Texas Moves Toward Abolishing Wrongful Birth Suits

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Posted in: Injury Law

Texas is currently considering a bill that would eliminate its wrongful birth cause of action. The bill appears to be inspired by concerns about motivating women to terminate pregnancies and classifying some born individuals with severe disabilities as “wrongful” in some way. In this column, I will consider whether these concerns are warranted and what the underlying meaning of a “wrongful birth” or “wrongful life” cause of action is.

What Is a Wrongful Birth Cause of Action?

A wrongful birth suit occurs when one or both parents of a child litigate against a doctor for his or her causal role in bringing about the birth of the child who the parents believe should not have been born. In other words, the parents allege that had the doctor done what she was supposed to do (e.g., informed the parents of a severe disability that was evident on an early ultrasound), the parents would have terminated the mother’s pregnancy, and the couple would not now have a son with a severe disability.

In one sense, the whole idea of a wrongful birth suit sounds very cold. It seems to say, quite explicitly, that there are some people who should never have been born and without whom the world would be a better place. But that is not necessarily what is going on in the minds of people who bring a wrongful birth suit. Instead, the parents of a severely disabled child very likely have extremely burdensome demands on their time as well as potentially crippling medical expenses to contend with. Seeking a recovery for wrongful birth is one way of attempting to deal with those realities, by asking that the doctor—whose failure to do what she was supposed to do gave rise to the situation that the parents face—provide funding for the immense burden that the parents now carry.

If the parent or parents did not feel a sense of love and obligation to their child, they could have given him up for adoption rather than kept him and taken care of him, with all of the demands that such care entails. Therefore, by the very fact that they are in the position of being able to sue for wrongful birth, they show their commitment to the child whom they have, a child they most likely love very much and want to help live as comfortable and happy a life as is possible, given his limitations. The parents in these suits have therefore done the responsible thing and are seeking help and support in continuing to do so.

Indeed, it is quite likely that at least some of the parents who bring wrongful birth suits are actually glad that their disabled child was born but see no other way of obtaining partial reimbursement for the immense expense that taking care of their child involves. In a way, what they are saying is that the doctor is responsible for the birth of their beloved child and that she therefore should have to pay for the downsides of that birth (the cost of care, for example), even if there is an upside in the love that the parents feel for their child and that he perhaps feels for them in return.

Encouraging Abortion

One argument that some have made in favor of eliminating the wrongful birth cause of action in Texas is that having such a cause of action encourages abortion. This is true in one sense but false in another. It is true in the sense that if such a cause of action exists, then each doctor will presumably be motivated to reveal to her patients an apparent deformity or disability that the doctor discovers during her patient’s pregnancy. This revelation, in turn, might lead the parents who learn of the deformity or disability to terminate the pregnancy at issue.

Had the parents been in the dark because the doctor failed to reveal this information about the embryo or fetus, then the couple would accordingly have kept the pregnancy, because they would have been aware of no reason to terminate. When there is a severe disability that would motivate an abortion, then, a doctor’s fear of litigation could incentivize honesty on her part and this could be said to “encourage” abortion in that it would permit abortions motivated by severe disability to take place.

In another sense, however, it is false to say that wrongful birth suits encourage abortion. What they encourage is forthrightness and honesty among physicians, which should already be the standard of conduct for physicians treating pregnant (and non-pregnant) patients. Some patients will learn of the disability and decide to proceed with the pregnancy anyway; more complete information will likely make dealing with the resulting birth far less traumatic than it would have been if the disability were a surprise that the parents learned about only at the time of birth or later. People sometimes want to know about challenges they will confront in advance as a means of allowing themselves to prepare for those challenges rather than necessarily because they want to escape from the situation.

For those people who seek an abortion, moreover, it will not be the lawsuit for wrongful birth that encourages them to do so—indeed, they will not be in a position to bring any such lawsuit if they terminate the pregnancy. What “encourages” abortion will be the fact of the severe disability and the toll that this could take on their lives as well as on the life of the child whose birth is under consideration.

Potential Downsides

To be sure, there is a symbolic downside to the existence of a wrongful birth cause of action. It may convey to people who are now in the world and who suffer from severe disabilities that their existence is “wrongful” in some way. It could have a similar impact on the specific child on whose birth the litigation centers. These symbolic harms, however, can be mitigated by a candid discussion of the fact that the lawsuit is mainly undertaken to help provide financial support for the care of the child in question.

The name “wrongful birth” could perhaps be better contextualized by understanding that what is truly at issue is a doctor’s failure to be honest with her patients so that they could make a decision that they had the right to make about whether to proceed with a pregnancy.

If one believes that abortion is tantamount to murder in all cases and should be impermissible across the board, then one will necessarily oppose wrongful birth suits, premised as they are on the option that women have of terminating their pregnancies. If, on the other hand, one distinguishes between the morality (and hence the appropriate legality) of different abortions, based on when in pregnancy they take place or why they take place, then an absolute opposition to wrongful birth suits becomes harder to defend.

In the case that first established a cause of action for wrongful birth in Texas, Jacobs v. Theimer, a woman contracted rubella (German measles) during her first trimester of pregnancy, a disease that resulted in defects in her child’s major organs. Medical bills were astronomical, as was the suffering of the child and her loving parents. Had the woman’s doctor diagnosed the condition and had he told her and her husband of the long-term risks it posed to their child, according to the mother, “I would have done the kindest thing that I could have known to have done for her, and that would have been to terminate the pregnancy.”

For those who believe, as I do, that a first-trimester abortion raises few moral concerns because it does not harm a sentient being, what the doctor did was to impose a lifetime of suffering and exorbitant expenses on a family while wrenching into existence a child whose life is filled with misery and who—if she never came into existence—would never have had to endure the daily agony she experiences.

Once a sentient being has come into existence, the moral calculus changes (in my view, as elaborated more fully in my book Beating Hearts: Abortion and Animal Rights, co-authored with Michael C. Dorf). Once the child is born, for instance, no one has the moral right to kill her, even if it would have arguably been better for both her and her parents if she had never come into existence. This is also true for the many severely disabled people who already exist and whose value should accordingly not be measured by the availability of a wrongful birth suit.

The same might be said of the fetus at the point that she becomes sentient. Even during pregnancy, then, one might conclude that a cause of action for wrongful birth should not lie for those cases where abortion would have had to take place very late in pregnancy. (For more on this topic as related to Zika-affected babies, you can read my column on the subject here). Because of the tremendous suffering involved, late abortions (and therefore lawsuits premised on the denial of an opportunity for a late abortion) raise difficult issues with agonizing consequences for all concerned.

Regardless of how one ultimately comes out on the issue of wrongful birth suits, we need to be very careful to make sure that we do not allow a wish that a child had not been born to morph into a judgment that severely disabled people are less entitled to our respect and regard than anyone else. Everyone who is in the world already, as a fully-rights-entitled sentient being, should be treated with compassion and respect. This may be challenging when the background law says it is acceptable to terminate a pregnancy to avoid someone “like that” from being born.

Yet we do this effortlessly for people who were conceived in rape. We say that they should never have been conceived (because the rape should not have taken place) and that terminating pregnancies with fetuses “like them” should be allowed. Yet once they are here, once the issue of abortion has become moot, we do and must welcome them into our community and treat them as equals. Despite the tension involved in holding these positions simultaneously, I believe we are up to the challenge and therefore mustn’t deny pregnant women their rights as a means of protecting against a hypothetical symbolic harm.

  • Joe Paulson

    The full column should be taken as a whole but on the abortion point, women have the right, using their personal moral code, to have an abortion at least early in their pregnancy (and after viability under narrow conditions). Full disclosure and appropriate tort lawsuits should not be denied to interfere with this choice. There is a troubling implication Texas is putting their thumb on the scales there, which has various constitutional problems.

  • Justapooorpeddler

    Texas lawmakers will be punished in Dante’s 8th circle of hell.

    Hypocrites are punished in this circle. They are forced to wear heavy lead robes as they walk around the circumference of their circle. The robes are golden and resemble a monk’s cowl but are lined with heavy lead, symbolically representing hypocrisy.

  • disqus_5T2jXBEN10

    I am “pro life” to me abortion is murder, however a doctor should give their patient all the pertinent information that pertains to their health and well being, this is a “contract” with the doctor and patient. If you remove the obligation of a doctor to give the due and reasonable care then it voids this obligation and contract. If a Doctor through, neglect, incompetence or intention does not give reasonable competent care to a patient then they are liable and the patient should be able to be compensated. Allowing this precedent opens a Pandora box that lets a Doctor be neglectful, incompetent, and abusive without any recourse by the patient, in other words not allowing a patient to sue for any reason for malpractice is unconstitutional. Anyone who has tried a malpractice suit knows it is “extremely” hard to get a judgment against a Doctor, in some States it is virtually impossible.

  • Steven Koukios

    “…This may be challenging when the background law says it is acceptable to terminate a pregnancy to avoid someone “like that” from being born?

    Quite an understatement, respectfully.