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From Blessing to Curse

The evolution of ‘wrongful birth’ lawsuits.

Apr 30, 2012, Vol. 17, No. 31 • By JONATHAN V. LAST
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On Friday, March 9, an Oregon jury reached its verdict in the case of Levy v. Legacy Health System. The jurors deliberated for just six hours before concluding unanimously that the plaintiffs, Ariel and Deborah Levy, had been wronged by the defendant and were due $2.9 million in compensation. The harmful event foisted upon the Levys was the birth of their daughter, Kalanit.

Court building

Deborah Levy discovered she was pregnant with Kalanit in November 2006. She and her husband, both 34, were surprised. They already had two sons, a preschooler and a toddler, and had not planned on more children. After coming to grips with the prospect of the new addition, they became concerned about the possibility of birth defects. They were worried about chromosomal abnormalities, the risk of which increases steadily with a mother’s age.

Deborah was screened by ultrasound during her first trimester. The results suggested a relatively high​—​about 1 in 130​—​chance that her baby would have Down syndrome. As a result, she went to the Legacy Center for Maternal-Fetal Medicine in north Portland for further screening. In the 13th week of her pregnancy she underwent chorionic villus sampling (CVS).

As part of this test, a small amount of tissue was taken from the fetal membrane. A lab operated by Legacy Health tested the tissue, and the results came back normal​—​23 pairs of chromosomes in each cell. The Levys were relieved.

Six months later, Kalanit was born at Good Samaritan Medical Center in northwest Portland. Her features suggested some form of Down, but the attending physicians checked her CVS test and told the Levys not to worry. When her parents took Kalanit to the pediatrician a week later for a checkup, the doctor performed a blood test and discovered the presence of an extra 21st chromosome. Kalanit did have Down syndrome. The Levys were, by their own account, “devastated.”

Two years later, they filed suit against Legacy Health for $14 million. (The Levys adjusted their claim downward as the case progressed.) They argued that the CVS had been incorrectly performed and the results incorrectly analyzed and communicated; that had they been provided correct information about Kalanit’s chromosomal composition, they would have aborted her; and that they deserved monetary compensation for the harm Kalanit’s birth had caused them.

The term of art for such suits is “wrongful birth.”

 

The legal doctrine of wrongful birth has been evolving for some time. The claim was first put forward in the 1934 case Christensen v. Thornby, in which a Minnesota man sought legal redress for a botched vasectomy that resulted​—​much to his regret​—​in an unexpected child for him and his wife. Christensen made it all the way to the Minnesota supreme court before being denied. The court held that Christensen could not have been harmed because the birth of any child was a “blessed” event.

The next attempt to create a tort for wrongful birth came in 1957, in the Pennsylvania case Shaheen v. Knight. The facts of the case were essentially the same​—​the plaintiff underwent a vasectomy, which failed, resulting in a baby. Shaheen sued his doctor for breach of contract, arguing that the “guarantee” of sterility had not been fulfilled. This time the Pennsylvania court ruled that, even though the contract had been broken, it would not countenance damages. The court stipulated that according to universal sentiment, procreation was the chief purpose of marriage. As such, it could not be considered harmful. To allow that “the normal birth of a normal child” is harm, the court said, would be “foreign to the universal public sentiment of the people.”

Yet the sentiment of the people was changing, quickly. “Wrongful birth” was​—​quite unintentionally​—​given momentum by the two landmark sexual freedom decisions of the U.S. Supreme Court that soon followed: Griswold v. Connecticut (1965) and Roe v. Wade (1973).

Griswold established a constitutional right to privacy for birth control, and Roe enshrined a universal right to abortion. The penumbras and emanations from these decisions made it impossible​—​as a matter of law​—​for a court to stipulate either that people married for the primary purpose of making babies or that the birth of a baby was always a blessing. The combination of Griswold and Roe essentially vacated Christensen and Shaheen and opened the way for new plaintiffs to explore the idea of wrongful birth. Which they did, with gusto.

While it took a quarter-century for those first two couples to test wrongful birth, the ’70s and early ’80s saw a profusion of lawsuits. Some were breach-of-contract suits following failed sterilizations. Others blazed new trails. In Troppi v. Scarf (1971), a woman sued her pharmacist after her prescription for birth control pills was improperly filled and she became pregnant. In Wilczynski v. Goodman (1979), a woman sued her doctor after he botched an abortion and she was “forced to bear and deliver” an unwanted but apparently healthy baby. And then came the last frontier: In Robak v. United States (1981), a couple sued after their doctor failed to inform them that their child might have rubella syndrome. In order to claim damages, the parents told the court that, had they known the risk of rubella, they would have aborted the child. The birth of a sick baby, they said, had caused them irreparable harm.

The courts found in favor of the plaintiffs in all three of those cases. But they were exceptions. In general, courts during that period were hostile to the notion of wrongful birth, and only a handful of the suits filed each year were successful. Read through decisions from that period and it’s apparent that the courts were trying​—​desperately​—​to maintain some sense of moral sanity in this new legal territory. In Troppi, for instance, a Michigan court wrestled with the impossibility of calculating damages by trying to make distinctions between types of mothers:

[Is it not likely that an] unwed college student who becomes pregnant due to a pharmacist’s failure to fill properly her prescription for oral contraceptives .  .  . has suffered far greater damage than the young newlywed who, although her pregnancy arose from the same sort of negligence, had planned the use of contraceptives only temporarily, say, while she and her husband took an extended honeymoon trip?

In another case, Hartke v. McKelway (1981), the U.S. District Court for the District of Columbia also found for a plaintiff whose sterilization had been botched. This time, the court agreed to compensation for the “pain, suffering, and mental anguish” of pregnancy and childbirth, but not to damages for the expense of rearing a “healthy” child.

This distinction​—​between healthy babies and babies born with a disability​—​was initially used to calculate damages. But once courts started using it for that purpose, it became impossible to avoid using a baby’s disability as a ground for a wrongful birth claim in the first place. By holding that, in a legal sense, the health of the baby mattered to a mother trying to avoid pregnancy, courts established a rationale under which a mother who was not trying to avoid pregnancy might claim harm if her baby was born disabled.

The catch: The mother had to testify that she would have aborted her child had she known about his disability.

In the America of the early twentieth century, where a judge could write a legal opinion calling a child a blessing, such sentiments were unthinkable​—​or at least inexpressible. By 1980, that America was gone. 

 

In 1982, five wrongful birth cases reached state supreme courts. All of them were decided in favor of the plaintiffs, and the decisions went a long way toward standardizing a legal approach. Three of those cases are particularly notable.

In Wilbur v. Kerr the Arkansas supreme court awarded damages to parents after a husband’s vasectomy failed. The court held to the pain-and-suffering line of Hartke and denied payment for child-rearing expenses, but added a wrinkle: It opined that making Dr. Kerr pay for raising the child would make the defendant in effect a surrogate parent. This shift in responsibility​—​away from the parents and to a third party​—​would eventually make the child feel like an “emotional bastard” when he grew up and learned of the arrangement. The court held that to allow the parents to claim that their child’s existence had harmed them was contrary to the child’s welfare.

In Ochs v. Borrelli, another botched sterilization case, the Connecticut supreme court created a new method of determining damages. It held that parents could be reimbursed for the expenses of rearing their unwanted child​—​but that in calculating these costs the lower court had to take into account not only harm inflicted but also the (unexpected) benefits to the parents of the child’s presence in their lives. The justices offered no guidance as to how lower courts were supposed to do this arithmetic.

Finally, in Naccash v. Burger, the Virginia supreme court heard the case of a couple who were given a faulty test for Tay-Sachs disease while Mrs. Burger was pregnant. The test said that the father was not a carrier; it turned out he was. Their daughter was born with Tay-Sachs and later died. The Burgers charged that, had they received accurate test results, they would have had an amniocentesis performed and, on discovering the fetus had the disorder, would have aborted her. The court held the medical providers liable not only for pain and suffering, but also for the expenses of the girl’s short life.

The decision in each of these cases hinged on the health of the unwanted child. And the rationales the courts constructed required future courts to make intricate monetary calculations of the value of the lives of healthy and disabled children. If a child had Down syndrome, for instance, she wouldn’t suffer the emotional harm foreseen by the Wilbur court from being provided for by a surrogate parent. But of course, she would still stack up poorly against a normal child. Naccash made this arrangement explicit: The defendant was required to pay for raising the child only because she suffered a genetic defect.

Few noticed this legal progression, partly because the subject is uncomfortable and partly because the annual number of wrongful birth suits in the country is counted barely in the dozens. But a few state legislators did notice, and they attempted to undo the framework the courts had built. In the years after 1982, 10 states stretching in a belt from Pennsylvania to Utah—and, as of last week, Arizona—enacted laws closing off torts “based on a claim that, but for an act or omission of the defendant, a child or children would not or should not have been born.”

These states are a distinct minority. The vast majority of states allow limited damages when healthy babies have been wrongfully born. Some of these draw a line at recovering the costs of raising the child; others muddle along in confusion. In Massachusetts, for instance, the supreme court allows parents of even a healthy unwanted child to be compensated for the expense of child rearing​—​so long as their desire to avoid parenthood was “founded on economic or financial considerations.”

All of which leaves the impression that judges don’t quite know what to do with wrongful birth. On the one hand, they understand, at a reptilian level, that something about the idea is deeply wrong. But on the other, they intuit that to return to the road of making moral distinctions would be intrinsically threatening to certain modern first principles. Namely, Griswold and Roe.

 

That’s where the Oregon supreme court found itself in 1994. Jonni Zehr delivered a baby, her and her husband’s second, via Caesarean section. They asked their obstetrician to perform a tubal ligation at the end of the procedure. Seven months later, Zehr was pregnant again. The Zehrs sued for sweeping damages​—​not just for pain and suffering, but also for the full cost of raising their third child, including college tuition. The Oregon supreme court held in their favor, taking the most expansive view of damages for wrongful birth. And it was this decision that brought us, finally, to Ariel and Deborah Levy.

Unlike the Zehrs, who faced surprise and inconvenience, the Levys have suffered tragedy. Despite the findings of the jury, there is doubt as to how the Down results were missed. The Levys believed that the doctor had mistakenly removed maternal, not fetal, tissue while performing the CVS test. But the defendant claimed that Kalanit has something called Mosaic Down, which means that many of her cells have the normal number of chromosomes. It could well be that the doctor happened upon such cells in taking a sample from the fetus.

Whatever the truth, the Levys say that, though they would have killed her if they had known of her condition, they love their daughter now that she is here, and there is no cause to doubt them. 

It’s important to understand that the Levys aren’t on the make. They are a middle-class couple who first met in preschool and have been married for 12 years. Ariel is a civil engineer, Deborah a dental hygienist. And providing care for Kalanit will be an expensive undertaking. The Levys have consistently sought a sum adequate to cover care for Kalanit throughout her life, even after they are gone. It is difficult​—​not impossible, but difficult​—​to fault parents for using drastic, morally questionable means in the service of an especially vulnerable child.

 

One of the peculiarities of our present legal system is that the government may swoop in to “protect” a child from his parents if, say, a father is seen letting his son have a taste of beer at a ballgame, but if parents stipulate, in a court of law, that they wish they had killed their son and that he has injured them to the tune of millions of dollars, the government not only leaves that child with his parents, it affords the parents a full and fair hearing of their grievance.

The big question​—​bigger than the Levys, bigger than the regime of wrongful birth​—​is how we arrived at the point where otherwise normal men and women are publicly basing a claim for money on the most horrible affirmation possible for a parent: We wish you had never been born.

There are two potential answers. At first blush, it seems obvious that this is where American culture has been headed since 1968. From the Founding through the Industrial Revolution, the family was the center of American society. As the country was remade, couples began having fewer children, and consequently they placed these children at the center of their lives, affording them resources and opportunities earlier generations would have thought lavish, foolish, or worse. The demographer Philippe Ariès called this period the “age of the child-king.”

But in the late 1960s, another transition got under way as the children of the baby boom began their adult lives. They avoided parenthood to a degree never seen before in American history: From 1968 to 1985 America’s fertility rate dropped like a stone. Instead, the Boomers pursued their own pleasures. Childbearing, when it occurred, had evolved from a communal duty to an act of self-fulfillment. And it remains so today.

Once parents view procreation through the lens of self, it becomes shockingly easy for them to complain about this or that outcome. When you are the center of the universe, it’s easy to interpret misfortune as grievance: You have not suffered an accident of fate; you are a victim of wrongful birth.

The other possible explanation is that it is the law that has brought us to this pass. From this angle, chief blame goes to the opinions in Griswold and Roe. They nullified previously settled law and not only opened the door to wrongful birth, but made it inevitable. And successive decisions by state courts made the problem worse. These decisions had the effect of encouraging parents to seek legal remedies for circumstances that, in earlier days, they would simply have endured. As the price of remedy, however, parents were forced to make assertions that less than a century ago were considered repugnant. In this view, it is the legal system that poisoned American culture, not the other way around.

It’s unclear which of these answers is closer to the mark. And which is worse.

Jonathan V. Last is a senior writer at The Weekly Standard.

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