As the genetic codes of individuals are mapped and understood, so too are the ramifications of negligence genetic counseling and other medical care that results in the birth of a severely handicapped child. Parents at risk for passing on genetic disorders, or even mothers of advanced maternal age, undergo tests to prevent the birth of a handicapped child. When negligence results in erroneous information being reported, the question arises under the law as to whether the parents and the child born into a life of suffering are entitled to recover for the harm of life.
"Wrongful life" cases are those brought by the child, who alleges he or she would have preferred not to have been born rather than to be born into a life of suffering. The dilemma presented by such a claim arises due to the need to compare a state of "nonlife" against the state of handicapped existence. Any claim for injury and damage must demonstrate that it is a harm to be born rather than to have never being born. This presents the ultimate metaphysical dilemma for courts and juries who must decided whether an impaired existence is worse than nonexistence.
Since man knows nothing of nothingness it is difficult for people to say that nonexistence is the preferred state of being (or nonbeing). Many states have therefore refused to recognize wrongful life claims due to the inability of juries to reach such a difficult decision. A few state supreme courts, however, have recognized the claim in one form or another. Those states include New Jersey and California, which are considered progressive common law states when it comes to tort law.
"Wrongful birth" claims are brought by the parents for the harms brought by the same negligence that results in the birth of a handicapped child. Many states, including Maryland, recognize this type of tort claim, despite refusing to recognize the infant's claims for wrongful life. This is because the comparison is between having a handicapped child and not having that child, which is easier to compare than comparing life and nonexistence. The vast majority of state supreme courts have recognized claims for wrongful life, although each has its own limitations on such things as whether the parents may recover the noneconomic pain and suffering damages for such a harm or whether they are limited solely to the economic costs of rearing a handicapped child.
Finally, "wrongful pregnancy" or "wrongful conception" cases involve the birth of a healthy child after a failed sterilization or other act of negligence by a health care provider. In such cases, the parents claim injury for having to raise a healthy child that was unplanned and unwanted. These damages are easily quantified.
Maryland presently recognizes the right to recover for wrongful pregnancy and allows a jury to award the costs of child rearing reduced by any benefit or joy brought to the parents by the child's birth. This can create complicated jury deliberation and is arguably an inappropriate use of the "mitigation rule" set forth in Section 920 of the Restatement (Third) of Torts, which provides that offsets of harm by benefit may only occur when the harms being compared are the same, meaning like harms and like benefits. For example, it is appropriate to reduce or offset an economic harm of child care with the economic gain that the child may bring to the family. It would be appropriate to offset the emotional harm brought by the child's birth by the emotional joys that child brings. But it is not appropriate under the Restatement approach to offset the economic harm brought by the birth with the joys of parenthood. This is the approach taken by the Court of Appeals of Maryland in Jones v. Malinowski, 473 A.2d 429 (Md. 1984). This writer maintains that this type of offset of dissimilar harms and benefits is incorrect and should be challenged in every case where a jury instruction to this effect is suggested by opposing counsel or the trial judge, or where the judge on post-verdict proceedings attempts to reduce or eliminate a favorable plaintiff's verdict utilizing this improper mitigation technique.
The foregoing birth injury cases are interesting and controversial but will arise more frequently as science makes it possible for parents to avoid the birth of handicapped children. There are negative repercussions these types of claims bring, and some have argued that it promotes a societal view that handicapped individuals will be looked upon disfavorably and that a child who learns his or her parents brought such a claim will be forever harmed knowing they were unwanted. Other controversial issues include whether a parent may be sued by the child for a poor decision to proceed with a pregnancy in the face of information that the child would be born with handicapp.
Alan J. Belsky has written extensively on this issue in his article entitled Injury as a Matter of Law: Is This the Answer to the Wrongful Life Dilemma, 22 U. Balt. L. Rev 185. He has handled a variety of malpractice cases involving birth injuries and trauma. For more information about birth injury litigation, please contact Mr. Belsky at Belsky, Weinberg & Horowitz, LLC at (410) 234-0100.