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The Wrongs of ‘Wrongful Birth’
Published in Joel Michael Reynolds, Christine Wieseler, The Disability Bioethics Reader, 2022
The legal claim of wrongful birth is a specialized type of tort claim. Tort claims seek to recognize civil ‘wrongs’ that have occurred due to negligence that can be traced to the defendant’s action or inaction. Typically, wrongful birth cases involve negligence of a physician to identify and inform parents of the existence of—or probability of —birth anomalies, disabilities, or other such factors thought to be medically pressing issues. Plaintiffs often sue for emotional and economic burdens associated with raising a child with a disability. In these cases, the burden of proof is on the plaintiffs to show that a medical provider “owed a duty to the parents, breached that duty, and the duty was a factual and proximate cause of the parent’s injury” (Yakren 2018, 587). Wrongful birth cases inextricably link parents’ injury to the child’s existence, making it a particularly controversial kind of tort claim.
Communicating About Technical Failures in Assisted Reproductive Technology
Published in Fritz Allhoff, Sandra L. Borden, Ethics and Error in Medicine, 2019
Rashmi Kudesia, Robert W. Rebar
On another front, “wrongful birth” or “wrongful life” lawsuits have originated in the context of children born with genetic diseases that couples allege should have been detected prior to conception (Caulfield 2001). The concept here is that, with available testing, the specific child with a severe (often fatal) illness “should not” have been born. The corollary of this argument is typically that, if appropriate testing had been applied, the parent(s) would have been able to choose a different, unafflicted embryo, and had a healthy child. Couples and individuals undergoing ARTs expect a “perfect” child, which is, unfortunately, not commensurate with the scientific reality (Damiano 2011).
Legal Fundamentals
Published in Julie Dickinson, Anne Meyer, Karen J. Huff, Deborah A. Wipf, Elizabeth K. Zorn, Kathy G. Ferrell, Lisa Mancuso, Marjorie Berg Pugatch, Joanne Walker, Karen Wilkinson, Legal Nurse Consulting Principles and Practices, 2019
Tonia Aiken, Adam B. Kuenning, Flynn P. Carey, Karen E. Evans, Zakiya Sloley, Grace Morse-McNelis
These two legal theories of liability are similar but are brought by two different plaintiffs. In a wrongful birth action, the lawsuit is brought by the parent of a child born with some sort of birth defect, and allegations are made that there was negligent medical treatment on the part of healthcare providers or a failure to provide advice that has deprived the parent of the opportunity to either avoid conceiving the child or timely terminate the pregnancy. Typically, these claims arise when there has been a failure to provide the parents with certain types of genetic testing or when a prenatal ultrasound was misread that evidenced severe birth defects. These claimants usually seek medical costs and expenses associated with caring for a child with a serious medical condition.
Cross-Country Comparative Analysis of Legislation and Court Rulings in Wrongful Birth Actions
Published in Journal of Legal Medicine, 2019
Serena Scurria, Alessio Asmundo, Patrizia Gualniera
Negligent conduct by health care providers can result in medical malpractice injury sustained by parents denied their right to decide whether and when to have children. Two different legal formulations are distinguished: (1) unintended birth due to failed abortion (wrongful pregnancy) or sterilization (wrongful conception) and (2) planned birth but of a child born with congenital defects or a specific disability, in which case, had the parents been warned, the pregnancy would have been terminated (wrongful birth). Different again is the concept of wrongful life, which refers to the injury sustained by a child born healthy or with congenital defects, due to negligent conduct by a health care provider.