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The Wrongs of ‘Wrongful Birth’
Published in Joel Michael Reynolds, Christine Wieseler, The Disability Bioethics Reader, 2022
Wrongful life is more similar to wrongful birth in that the injury described is related, either directly or indirectly, to the existence of the child. Wrongful life cases directly label the life of the child as the injury. In these cases, it is the child who has direct standing to bring a case. Wrongful birth cases indirectly note the existence of the child as the injury by claiming a lack of choice to abort given an absence of or inaccurate medical information. In these cases, it is the parent(s) of the child that can bring a suit.
Reproduction
Published in Gary Chan Kok Yew, Health Law and Medical Ethics in Singapore, 2020
The disabled child’s claim based on “wrongful life” for the damages he or she allegedly suffered are generally not recoverable. In contrast to wrongful birth claims where courts are called to assess the mother’s claim for the costs of bringing up the child, the central issue in a wrongful life claim for damages concerns the worth of the child’s existence. In JU v See Tho Kai Yin,160 it was alleged that the defendant (an obstetrician and gynaecologist) had negligently failed to advise a pregnant woman of the increased risks of having a baby with chromosomal abnormalities due to the woman’s age. The woman claimed that, as a consequence, she was prevented from exercising her option to abort the baby. With respect to the claim by the disabled child (who was born with Downs’ syndrome) for pain and financial hardship as a result of being born, the High Court ruled that such an action would be contrary to public policy as it violated the sanctity of human life. The Singapore court had followed the position in McKay v Essex Area Health Authority161 denying wrongful life claims. Stephenson LJ in McKay162 stated that to impose a duty “would mean regarding the life of a handicapped child as not only less valuable than the life of a normal child, but so much less valuable that it was not worth preserving”. Both Stephenson LJ and Ackner LJ highlighted the impossibility of valuing “non-existence” over existence, however handicapped the child may be.
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).
Yesterday’s Child, Tomorrow’s Plaintiff: Why We Should Expect an Uptick in Wrongful-Life Suits Following Embryonic Application of Gene-Editing Technologies
Published in The American Journal of Bioethics, 2019
In a wrongful-life cause of action, the plaintiff claims that his parents’ prenatal doctors were negligent in failing to provide his parents with genetic information that would have compelled the parents to terminate the pregnancy (Gillon 1998; Shapira 1998); the plaintiff claims that he shouldn’t have been born at all, that his life itself constitutes a harm (Benston 2013). Thus far, plaintiffs bringing this cause of action against their parents’ doctors have tended to be individuals with catastrophic disabilities that have rendered their physical and emotional lives indubitably painful (Curlender v. Bio-Sciences Laboratories 1980). Courts have long wrestled with the philosophical problem of deeming anyone’s life not worth living, instead focusing on the damages inflicted on plaintiffs with such detrimental problems (Bell and Loewer 1985). However, in a post-genetic-enhancement world where, as Sparrow shows, all individuals’ worth can decline to the zero of obsolescence, we may expect wrongful-life suits to begin succeeding on the claim that lack of (sufficient) genetic enhancement constitutes a life-invalidating harm.
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.