The Debate over Wrongful Birth and Wrongful Life
![handle is hein.journals/lpsyr26 and id is 145 raw text is: THE DEBATE OVER WRONGFUL BIRTH AND WRONGFUL
LIFE
I. INTRODUCTION
As technology in the medical arena improves, the expectations and
duties placed upon medical professionals also escalate. In the past, par-
ents gave birth to children, unaware of possible disabilities or diseases,
and took full responsibility for raising children despite their handicaps.
This time has passed, precluded by the expectation placed on medical
professionals to warn of any possible dangers that may affect the child.
The benefits that society has accrued as a result of technological ad-
vances in the health-care field have led physicians to become the targets
of birth-related tort claims such as wrongful birth, wrongful life, and
wrongful pregnancy. This area of tort law has expanded for several rea-
sons including the ability to identify potential problems that may arise
during pregnancy prior to conception, harmful medical procedures that
injure both mother and child, and the discovery of harmful drugs or ex-
posure to toxic substances that lead to deformities in the child., Examin-
ing this expanding tort law is problematic largely because of the varying
definitions for these claims among jurisdictions.2
Focusing on wrongful birth and preconception torts,3 this Comment
addresses the prolonged debate concerning claims brought against
health-care providers which stems from their duties owed to patients.
There is a substantial need for common legislation in this area of the law
for the benefit of both physicians and patients. The present problem is
that the same set of facts may encompass a cause of action in one state,
I. Matthew Browne, Preconception Tort Law in an Era of Assisted Reproduction: Applying
a Nexus Test for Duty, 69 FORDHAM L. REV. 2555, 2556 (2001).
2. See, e.g., Mark Strasser, Misconceptions and Wrongful Births: A Call for Principled
Jurisprudence, 31 ARIZ. ST. L.J. 161, 161 (1999) (What is surprising in this area of the law,
however, is the lack of consensus regarding why these actions should be permitted and what sorts
of damages should be compensable.); Kimberly D. Wilcoxon, Statutory Remedies for Judicial
Torts: The Need for Wrongful Birth Legislation, 9 U. CIN. L. REV. 1023, 1028-30 (2001) (stating
that some jurisdictions define a cause of action for wrongful conception when parents sought ster-
ilization or contraception, and a cause of action for wrongful birth when negligent counseling
created a missed opportunity for abortion). Other states distinguish based on the condition of the
child, whereas still others distinguish based on the time of the physician's negligence. Id.
3. Although some courts distinguish between wrongful birth and wrongful conception, the
latter claim will not be discussed in this Comment. See, e.g., Smith v. Gore, 728 S.W.2d 738, 741
(Tenn. 1987) (Wrongful pregnancy or conception is an action brought by the parents on their own
behalf to recover damages resulting from a failed pregnancy avoidance technique [such as] vasec-
tomy, tubal ligation, abortion, misfilled birth control prescription .... ).](ViewImageLocal?handle=hein.journals/lpsyr26&div=8&collection=&method=preview&ext=.png&size=3)
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The Debate over Wrongful Birth and Wrongful Life
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