Genetic Disability and Legal Action: Wrongful Birth, Wrongful Life

Abstract

Parents of children born with impairments, birth defects or health condition can sue health professionals for the tort of wrongful birth; the tort of wrongful life is based on the same events but is brought by the child. Wrongful birth actions are often successful, if the parents can show negligence and they have suffered compensable harm. Wrongful life actions, however, are almost always unsuccessful or blocked by legislation, primarily because courts are reluctant to allow that nonexistence is preferable to existence with impairments or find it impossible to calculate what these damages would be. Both actions are objectionable because they force parents, and courts, to devalue the lives of persons with impairments. Some scholars argue that tort law is inappropriate for such actions and that breach of warranty in contracts is more appropriate, as the damage is the unanticipated extra costs resulting from impairments or birth defects.

Key Concepts

  • If, because of the negligence of a health professional, a child is born with impairments or birth defects, parents can sue for the tort of wrongful birth and the child can sue for wrongful life.
  • Wrongful birth cases are often successful, if negligence and actual harm are proved; but wrongful life cases are almost always unsuccessful or banned by legislation.
  • Wrongful birth cases, when successful, usually rely on the argument that the negligent health professional breached the duty of professional care owed to the parents, and this led to unexpected additional costs of raising a child.
  • Courts are often reluctant to determine, as is required by wrongful birth and life cases, that a life of a child born with a birth defect or impairment is worse than nonexistence.
  • Wrongful life and birth cases are objectionable on the policy grounds that they force parents and courts to devalue the life of children born with impairments.
  • Scholars argue that wrongful birth and life cases would be better conceived as breach of warranty cases in contracts rather than as torts.

Keywords: wrongful birth; wrongful life; birth defects; genetic counselling; disability

References

Hensel W (2005) The disabling impact of wrongful birth and wrongful life actions. Harvard Civil Rights‐Civil Liberties Law Review 40 (1): 141–195.

Perry R (2008) It's a wonderful life. Cornell Law Review 93 (2): 329–400.

Further Reading

Andrews L and Hibbert M (2000) Courts and wrongful births: can disability itself be viewed as a legal wrong? In: Francis L and Silvers A (eds) Americans with Disabilities: Exploring Implications of the Law for Individuals and Institutions, pp. 283–292. New York: Routledge.

Berenson MA (1990) The wrongful life claim – the legal dilemma of existence versus nonexistence: “to be or not to be”. Tulane Law Review 64 (5): 895–918.

Botkin JR and Mehlman MJ (1994) Wrongful birth: medical, legal, and philosophical issues. Journal of Law, Medicine and Ethics 22 (1): 21–28.

Brock DW (1995) The non‐identity problem and genetic harms – the case of genetic handicaps. Bioethics 9: 269–275.

Fortin JES (1987) Is the “wrongful life” action really dead? Journal of Social Welfare Law 9 (5): 306–313.

Gur N (2014) Wrongful life claims and negligent selection of gametes or embryos in infertility treatments: a quest for coherence. Journal of Law and Medicine 22 (2): 426–441.

Harris J (1990) The wrong of wrongful life. Journal of Law and Society 17 (1): 90–105.

Kelley MB (1991) The rightful position in “wrongful life” actions. Hastings Law Journal 42 (2): 505–590.

Milani AM (1997) Better off dead than disabled? Should courts recognize a “wrongful living” cause of action when doctors fail to honor patients' advance directives? Washington and Lee Law Review 54 (1): 149–228.

Muriithi PM (2011) Does the rejection of wrongful life claims rely on a conceptual error? Journal of Medical Ethics 37 (7): 433–436.

Pollard DA (2004) Wrongful analysis in wrongful life jurisprudence. Alabama Law Review 55 (2): 327–374.

Strasser M (1999) Wrongful life, wrongful birth, wrongful death, and the right to refuse treatment: can reasonable jurisdictions recognize all but one? Missouri Law Review 64 (1): 29–76.

Tedeschi G (1966) On tort liability for “wrongful life.”. Israel Law Review 1 (4): 513–538.

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How to Cite close
Bickenbach, Jerome(Jun 2017) Genetic Disability and Legal Action: Wrongful Birth, Wrongful Life. In: eLS. John Wiley & Sons Ltd, Chichester. http://www.els.net [doi: 10.1002/9780470015902.a0005193.pub2]