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.
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.