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23 Ind. L. Rev. 753 (1990)
Pay Me Now or Pay Me Later: The Question of Prospective Damage Claims for Genetic Injury in Wrongful Life Cases

handle is hein.journals/indilr23 and id is 765 raw text is: Pay Me Now or Pay me Later?: The Question of Prospective Damage Claims For Genetic Injury in Wrongful Life Cases Melanie Meredith, a profoundly retarded adult lacking any muscle control, became pregnant as the result of being raped by another patient of Riverview nursing home where she resided.' Her condition remained undetected for approximately five months.2 During this time, she re- ceived no prenatal care and remained on a regular regimen of the drug Dilantin.3 She gave birth to a son, Jacob.4 In August of 1989, Jacob became the first person in Indiana to successfully state a claim for wrongful life.5 Wrongful life actions are brought by, or on behalf of, a child who suffers some impairment associated with his life. The child alleges that the defendant's negligence led to his birth. Generally, children bringing wrongful life actions suffer severe congenital defects.6 The suits typically name a health care pro- vider who negligently fails to inform or misinforms a prospective parent of the risks associated with bearing the child.7 For example, a doctor 1. Cowe by Cowe v. Forum Group Assoc., 541 N.E.2d 962, 964 (Ind. Ct. App. 1989). 2. Id. at 967. 3. Id. When taken during pregnancy, Dilantin, an antispasmodic, induces changes in the fetal genetic structure resulting in a variety of birth defects including both physical deformities and mental deficiencies. This is known as Fetal Hydantoin Syndrome. See Hunson & Smith, The Fetal Hydantoin Syndrome, 87 J. PEDIATIUcs 285 (1975). 4. Id. at 964. 5. Initially, the tort of wrongful life must be differentiated from the closely related torts of wrongful conception, wrongful pregnancy and wrongful birth. Both wrongful conception and wrongful pregnancy claims are brought after a negligently performed sterilization or failed contraceptive leads to the birth of an unplanned, but healthy child. This action belongs to the parents who can recover damages to compensate for the costs associated with pregnancy and delivery of the child. See, e.g., Garrison v. Foye, 486 N.E.2d 5, 7 (Ind. Ct. App. 1985). 6. See, e.g., Harbeson v. Parke-Davis, 98 Wash. 2d 460, 656 P.2d 483 (1983) (Fetal Hydantoin Syndrome); Turpin v, Sortini, 31 Cal. 3d 220, 643 P.2d 954, 182 Cal. Rptr. 337 (1982) (total deafness); Procanik by Procanik v. Cillo, 97 N.J. 339, 487 A.2d 755 (1984) (Congenital Rubella Syndrome); Berman v. Allen, 80 N.J. 421, 404 A.2d 8 (1979); Becker v. Schwartz, 46 N.Y.2d 401, 386 N.E.2d 872, 413 N.Y.S.2d 895 (1978); Azzolino v. Dingfelder, 315 N.C. 103, 337 S.E.2d 528 (1985), cert. denied, 479 U.S. 835 (1986), reh'g denied, 319 N.C. 227, 353 S.E.2d 401 (1987) (children born with Down's syndrome); Goldberg v. Ruskin, 113 111. 2d 482, 499 N.E.2d 406 (1986) (Tay-Sachs disease); Speck v. Finegold, 286 Pa. Super. 342, 408 A.2d. 496 (1979); Park v. Chessin, 60 A.D.2d 80, 400 N.Y.S.2d 110 (1977) (polycystic kidney disease); Gallagher v. Duke Univ., 638 F. Supp. 979 (M.D.N.C. 1986) (Trisomy 9); Bruggeman v. Shimke, 239 Kan. 245, 718 P.2d 635 (1986) (multiple congenital abnormalities). 7. See supra note 6.

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