From Blessing to Curse
The evolution of ‘wrongful birth’ lawsuits.
Apr 30, 2012, Vol. 17, No. 31 • By JONATHAN V. LAST
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:
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.