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51 Ohio St. L.J. 473 (1990)
Wrongful Life: Time for a Day in Court

handle is hein.journals/ohslj51 and id is 485 raw text is: Note Wrongful Life: Time for a Day in Court I. INTRODUCTION More than twenty-five years have elapsed since the first cause of action for a so-called wrongful life was brought in the Illinois case of Zepeda v. Zepeda.' While Zepeda dealt with a rather simple claim by an otherwise healthy infant against his biological father for having caused the infant to suffer his wrongful life as an adulterine bastard,2 the wrongful life claim was soon introduced into far more complex and tragic contexts. By far the most common of these has been in the area of genetic counseling for would-be parents and parents-to-be. The frequently touted marvels of mod- ern technology have certainly incfeased the potential for informed decisionmak- ing by prospective parents with regard to possible congenital and genetic defects in their offspring. As one presidential commission has noted: The rapid advances now occurring in genetic screening techniques and the in- creased resources devoted to genetic counseling give Americans new opportunities to understand their biological heritage and to make their health care and reproductive plans accordingly ... . . . The demand for such counseling has grown dramatically in the past decades and promises to become increasingly important as new screening tests are developed.' With the new technology and its ability to provide some measure of assurance to prospective parents come the responsibility and duty of professionals to em- ploy that technology correctly. When the duty to inform parents of potential genetic or congenital hazards faced by their offspring is breached, the result can be the birth of an impaired infant-one who might otherwise have been spared his suffering. This then is the assertion common to all wrongful life claims-that another's negligence has resulted in the birth of a child so im- paired that it would have been better for that child never to have been born.4 While the wrongful life cause of action has turned up in a variety of fac- tual situations, it has met with virtually no success on either the judicial5 or the 1. 41 Ill. App. 2d 240, 190 N.E.2d 849 (1963), cert. denied, 379 U.S. 945 (1964). 2. For those not familiar with the term, [an adulterine bastard, as contrasted to an ordinary bastard, is a child born to parents one or both of whom is married to another person not a biologicial parent of the child. An ordinary bastard is simply an illegitimate child born to two unmarried parents. H. BUTZEL, GENFrICS IN THE COURTS 1 (1987). 3. PRESIDENT'S COMMISSION FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL AND BEHAVIORAL RESEARCH. SCREENING AND COUNSELING FOR GENETIC CONDITIONS 1, 4 (1983). 4. Some commentators have tried to avoid the starkness of this assertion by framing the claim for wrongful life in other terms, such as a failure to provide the impaired child's parents with information necessary to give informed consent to the continuation of the pregnancy. 5. The following jurisdictions have rejected a common law cause of action for wrongful life: Alabama, Elliott v. Brown, 361 So. 2d 546 (Ala. 1978); Arizona, Walker v. Mart, No. CV-89-0065-CQ (Ariz. Apr. 12, 1990) (1909 WL 250); Colorado, Lininger v. Eisenbaum, 764 P.2d 1202 (Colo. 1988); Delaware, Garrison v.

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