18 Duq. L. Rev. 857 (1979-1980)
Wrongful Life: Recognizing the Defective Child's Right to a Cause of Action

handle is hein.journals/duqu18 and id is 889 raw text is: Wrongful Life: Recognizing the Defective
Child's Right to a Cause of Action
J. Douglas Peters*
Brian M. Peters**
Recent advances in medical technology and genetic study permit
physicians to predict, with varying degrees of accuracy, the likelihood
of prospective parents giving birth to a defective offspring.' This infor-
mation, when provided to prospective parents prior to conception or
during pregnancy, allows them the choice of preventing conception or
birth of potentially defective children by utilizing contraceptive tech-
niques or terminating the pregnancy with an abortion. Because of
these genetic and technological advances, courts increasingly have
been called upon to adjudicate claims based on a physician's failure to
detect or to disclose the possibility that a defective child will be born.
The effect of the physician's failure denies the parents, on their own
and on the child's behalf, the choice of preventing the conception or
birth of the defective infant. Specifically, the physician's failure results
in the infant's birth and subsequent existence as a severely handi-
capped or diseased individual. Lawsuits on behalf of or in the name of
the child, based upon such physician failures, are called wrongful life
actions.' To date, however, no appellate court of last resort has recog-
*B.A., 1971, University of New Hampshire; J.D., 1975, University of Toledo. Mr.
Peters is an associate with Charfoos and Charfoos, P.C., Detroit, Michigan. He is cur-
rently serving as Legal Director of the Michigan Medical Schools Council of Deans'
Medical-Legal Project, and is an Adjunct Assistant Professor of Law and Medicine at the
University of Toledo College of Law and at Wayne State University School of Medicine.
**B.A., 1977, University of New Hampshire; J.D., 1980, Temple University.
1. For a discussion of those advanced techniques for predicting defective offspring,
see notes 76-82 and accompanying text infra.
2. See Gleitman v. Cosgrove, 49 N.J. 22, 28, 227 A.2d 689, 692 (1967). For a proper
understanding of the wrongful life cause of action it is essential to note at the outset of
this article that the cause of action is brought only by the child or, if deceased, by the ad-
ministrators of his/her estate. Any action brought by the child's parents for any injury
they may have suffered due to the child's birth and/or subsequent death is separate and
distinct from the child's action. Due in part to the complexity of the wrongful life issue
and the necessity to focus this article, the authors concentrate solely on the issue of
wrongful life and leave for another time the discussion of the related parental causes of


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