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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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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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