Burdened by Life: A Brief Comment on Wrongful Birth and Wrongful Life

Written by Brady Begeal, Topics Chair, Albany Government Law Review Member

Introduction

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.”[1] 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.[2] 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.[3] 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.

Continue reading “Burdened by Life: A Brief Comment on Wrongful Birth and Wrongful Life”

A “Right to be Secure” From GPS Tracking? Not Under the Fourth Amendment

Andrew Dructor, Staff Writer

I. Intro

In May of 2009, the New York Court of Appeals held that under the New York State Constitution police agencies would be required to obtain a warrant before attaching a GPS device in order to track a suspect’s automobile.1  However, the Court noted that this issue is still unsettled as a matter of federal law under the Fourth Amendment.2  This blog post describes what GPS is, provides current Supreme Court Fourth Amendment analysis of “search and seizure,” describes how courts around the country have ruled on the issue, and concludes by arguing that it is time for the Supreme Court to change its Fourth Amendment analysis in order to take into account the history that shaped it.

II. GPS

Global Positioning System (GPS) was developed in the 1970s by the U.S. Department of Defense and was made possible through a network of satellites.3 It provides twenty-four-hour-a-day location information accurate within one meter (1.094 yards, 3.281 feet).4  This also enables it to track direction and speed.  GPS devices have become “a mainstay of transportation systems worldwide” and are small enough to fit in cell phones and wristwatches.5  GPS devices are also becoming cheaper and can be purchased for under $100.6 

GPS has also become a tool to fight crime.  John Wesley Hall, president of the National Association of Criminal Defense Lawyers, commented: “I’ve seen them in cases from New York City to small towns — whoever can afford to get the equipment and plant it on a car.”7  The few law enforcement authorities who have commented on GPS use have noted that it “is essentially the same as having an officer trail someone, just cheaper and more accurate.”8  GPS takes the place of the officer who would normally have to follow the suspect himself.  This allows police authorities to use less man-power tailing suspects because all of the GPS devices could be monitored by a single officer in one room.  Continue reading “A “Right to be Secure” From GPS Tracking? Not Under the Fourth Amendment”