Written by Brady Begeal, Topics Chair, Albany Government Law Review Member
In Roe v. Wade, the United States Supreme Court held that “the right to privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Over the past several decades, prenatal torts like wrongful birth and wrongful life have developed from the judicially recognized right to have an abortion. Nearly all of the states recognize wrongful birth claims, and four accept wrongful life claims. What do these two actions entail? Although there are many permutations of how either action can arise, and sometimes they carry a different label, a typical fact pattern for both actions goes as follows.
A woman becomes pregnant and begins the typical process for pre-natal care. She goes to the doctor for check-ups and the doctor monitors the pregnancy and guides the expecting mother through each stage. Then, during the pregnancy, a risk that the unborn child will be born with birth defects becomes apparent to the doctor. At some point, the doctor acts negligently in some way, perhaps by a failed diagnosis, failing to proscribe the proper course for the woman to take, proscribing an improper method, or simply failing to warn the mother of the risks of which the doctor is aware. Finally, the woman gives birth, but the baby is born with some kind of severe birth defect or impairment. This is where the two actions diverge.
An action for wrongful birth is brought by the mother. Essentially, she argues that but for the negligence of the doctor, she would have decided to have abortion and terminated the pregnancy. The mother argues that she has lost a right to which she is entitled to; the right to make an informed decision as to whether or not to have a child with birth defects. Now, since the child has been born, and born with birth defects, the parent or parents demand damages associated with having to raise a disabled child.