About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

23 Seton Hall L. Rev. 1876 (1992-1993)
Torts - Wrongful Life - A Birth Defective Child Born Prior to Roe v. Wade Does Not Have a Valid Cause of Action in Wrongful Life against the Physician Who Failed to Inform Its Mother of the Option of an Abortion

handle is hein.journals/shlr23 and id is 1894 raw text is: TORTS-WRONGFUL LIFE-A BIRTH DEFECTIVE CHILD BORN PRIOR TO ROE V. WADE DOES NOT HAVE A VALID CAUSE OF ACTION IN WRONGFUL LIFE AGAINST THE PHYSICIAN WHO FAILED To INFORM ITS MOTHER OF THE OPTION OF AN ABOR- TION-Hummelv. Reiss, 129 N.J. 118, 608 A.2d 1341 (1992). Within the past several decades, the New Jersey Supreme Court has attempted to appraise the value of human existence in wrongful birth and wrongful life cases.' Although New Jersey I J. Brent Welker, Note, New Jersey Allows Wrongful Life Damages, 1986 ARIZ. ST. LJ. 361, 361 (1986). Wrongful life is the name given to actions brought by or on behalf of a defective child who claims that but for the defendant doctor's negligent advice to or treatment of its parents, the child would not have been born. Pro- canik v. Cillo, 97 NJ. 339, 348, 478 A.2d 755, 760 (1984); see also Mark E. Cohen, Note, Park v. Chessin: The Continuing Judicial Development of the Theory of Wrongful Life, 4 AM. J.L. & MED. 211, 211 (1978) (stating that the wrongful life claim arises when a doctor negligently omits information from his advice to parents regarding the possibility of birth defects, and that the omission affects the parents' decision to have or not have the child). In such a case, plaintiffs do not claim that the defend- ant caused the infant's condition or that the child ever had the chance of being born normal. Procanik, 97 N.J. at 348, 478 A.2d at 760. Rather, the essence of a wrong- ful life claim is that the physician deprived the parents of the right to prevent the child's birth. Id. Thus the infant's claim is based on the premise that his very life is 'wrongful.' Gleitman v. Cosgrove, 49 N.J. 22, 28, 227 A.2d 689, 692 (1967). Wrongful life suits must be distinguished from other related torts such as wrongful conception, wrongful birth and dissatisfied life. Thomas K. Foutz, Com- ment, Wrongful Life: The Right Not To Be Born, 54 TUL. L. REV. 480, 483-85 (1980); Cohen, supra, at 212. The claim of wrongful conception, also called wrongful preg- nancy, arises when the parents of a healthy child assert that the birth was unwanted. Foutz, supra, at 485. Many of these suits are related to contraceptive failure or neg- ligent sterilization or abortion. Cohen, supra, at 212 n.4; see, e.g., Coleman v. Garri- son, 327 A.2d 757, 761-62 (Del. Super. Ct. 1974) (holding that a cause of action existed for wrongful conception when a child was born despite a sterilization opera- tion). Wrongful birth claims, on the other hand, involve deformed children whose births were planned. Foutz, supra, at 485; see generally W. PAGE KEETON, ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 55, at 367 (5th ed. 1984) (discuss- ing the concept of duty with regard to prenatal injuries). In a wrongful birth case, parents seek recovery for extraordinary medical expenses required to raise the child and for their personal pain and suffering. Foutz, supra, at 484; see, e.g., Moores v. Lucas, 405 So. 2d 1022, 1026 (Fla. Dist. Ct. App. 1981) (validating a cause of action for wrongful birth where a doctor did not warn parents of an inheritable genetic disease). Claims instituted by children against their parents contending that they should not have been born under particular circumstances are called dis- satisfied life suits. Cohen, supra, at 212. Generally, these suits involve claims of illegitimate children against their fathers and rarely succeed. Id. at 212 n.5; see, e.g., Pinkney v. Pinkney, 198 So. 2d 52, 54 (Fla. Dist. Ct. App. 1967) (disallowing recov- ery to an illegitimate child who sought damages from her father); Zepeda v. Zepeda, 190 N.E.2d 849, 855 (Ill. App. Ct. 1963) (positing that although a tort 1876

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most