Search

The article examines prenatal tort jurisprudence in the U.S., highlighting some of the differences among the states with respect to whether the causes of action will be recognized and which kinds of damages are recoverable. Topics discussed include wrongful birth, wrongful pregnancy, wrongful life, and abortion. Also mentioned are the difference between prenatal torts and other kinds of prebirth medical negligence, and scenarios that should not fall within prenatal tort jurisprudence.

The Alabama Supreme Court recently held, in LePage v. Center for Reproductive Medicine , that the parents of human embryos that were negligently destroyed at a fertility clinic could bring an action for damages under the State's wrongful death statute. Although the Alabama legislature promptly enacted a law essentially overturning the state supreme court's decision, concerns have been raised that the court's decision might influence courts in other States to interpret their wrongful death statutes, or possibly even their fetal homicide statutes, to apply in similar circumstances, thereby threatening the availability of in vitro fertilization (IVF) technology. This article addresses those concerns., With respect to wrongful death statutes, only fourteen States (excluding Alabama) have interpreted their statutes to apply to unborn children without regard to their stage of gestation or development. The majority of States impose a gestational requirement (typically, viability) which would preclude their application to the destruction of human embryos. Even with respect to the minority of States that impose no limitation on the cause of action, those statutes, either by their express language or by fair interpretation, would not apply to unimplanted human embryos., With respect to the fetal homicide statutes in thirty-one States that do not have any gestational or developmental limitation, the statutes in twenty-six of those States apply only to acts causing the death of an unborn child in utero . As to the statutes in the other five States, the structure of the statute, considered in light of the applicable case law, strongly suggests that there would be no liability for causing the death of an unborn child before implantation. In sum, the Alabama Supreme Court's decision in LePage is not likely to be followed as a precedent in interpreting either the wrongful death statutes or the fetal homicide statutes of any other State., (Copyright © 2024 by the National Legal Center for the Medically Dependent and Disabled, Inc.)

"Wrongful birth" is a controversial medical malpractice claim raised by the mother of a child born with a disability against a medical professional whose failure to provide adequate prenatal information denied her the chance to abort. Plaintiff-mothers are required to testify that, but for the defendant's negligence, they would have terminated their pregnancy. Accordingly, alongside pro-life activists, disability rights advocates have opposed "wrongful birth" claims for stigmatizing and discriminating against people with disabilities by framing their very existence as a harm. Despite plaintiff-mothers' need for caretaking resources, scholars have recommended solutions ranging from the wholesale elimination of the wrongful birth claim to the curtailment of damages. To the extent scholars and the media have acknowledged mothers in the wrongful birth discourse at all, often it has been to blame and shame them for allegedly rejecting their children. They have paid little attention to the ways wrongful birth jurisprudence forces mothers to disavow their children in court, and thereby to forfeit the "good mother" ideal, in exchange for the possibility of securing necessary resources for their children. Commentators who question plaintiff-mothers' maternal devotion exacerbate the psychological toll the law already imposes. This Article shifts the blame from mothers to the legal system. While wrongful birth proceedings portray mothers' feelings about their children as categorically negative, real life accounts and social science findings reveal the true paradoxical experiences of all mothers, including plaintiff-mothers raising children with disabilities. To acknowledge this complex reality and mitigate the emotional strain of bringing a wrongful birth claim, this Article proposes several legal reforms: (1) broadening the analysis of emotional distress to reflect and legitimize mothers' paradoxical feelings about their children; (2) reframing the harm to mothers as loss of reproductive choice rather than as the birth of a flawed child and, accordingly, expanding available economic damages to include plaintiff-mothers' unexpected childcare responsibilities; and (3) educating plaintiffs' attorneys to empathize with the emotional aspects of mothers' litigation experiences and to counsel mothers accordingly. Today's approach to "wrongful birth" claims, which both stigmatizes disability and strains caretakers, demands urgent reform. [ABSTRACT FROM AUTHOR]

The article focuses on the history of racial segregation in the U.S, along with assisted reproductive technology., and includes an account of antimiscegenation laws of the country; Loving v. Virginia court case on interracial marriage; and Cramblett v. Midwest Sperm Bank, LLC on wrongful birth.

Most courts around the world have been refusing wrongful life actions. The main argument invoked is that the supposed compensable injury cannot be classified as such, since life is always a blessing no matter how hard and painful it is. In opposition to mainstream scholars and the dominant case law, this article sustains that life must be distinguished from living conditions, the former being the real injury at stake, since some living conditions are so intolerable that in themselves they justify a compensation within wrongful life actions. [ABSTRACT FROM AUTHOR]

This Article addresses the need for family law scholarship that better theorizes and grapples with how race informs American life in the 21st Century. Family law scholars have been instrumental in documenting and advocating for recognition of the "new kinship"--familial relationships and affective ties forged outside of marriage and amidst dramatic demographic shifts. In doing so, though, they have largely ignored race, focusing instead on matters such as gender or class. The assumption is that kinship is race-neutral. But, in fact, kinship has a color. Part II explores this reality by analyzing Cramblett v. Midwest Sperm Banks, LLC, a case involving a lesbian mother who filed a wrongful birth suit when the insemination process she underwent resulted not in the white baby desired, but a child who is partially black. Part III explains how the colorblind approach that informs much of family law scholarship undermines the ability of scholars in this area both to interrogate cases like Cramblett and to offer meaningful solutions to the problems that families confront. Part IV advocates for a new approach to issues of family and race, including whiteness. Mapping a research agenda and alternative vision for family law scholarship, this article urges greater attention to the ways in which race informs the functioning of all families and intersects with issues like sexual orientation and class. This article also makes the case that family law scholars can advance the national debate about race and inequality in the United States by offering insights into the ways in which family law systems and policies shape notions of race and structure inequality across a range of areas. [ABSTRACT FROM AUTHOR]

The article examines scholarly trend to clarify the issues surrounding wrongful life with which courts, a t home and abroad, continue to struggle. It concludes that concludes that none of the proffered justifications for wrongful life provides a completely coherent account of the claims under existing legal frameworks.

The article discusses the need of implementation of a new statutory birth-related tort of negligence in the U.S. Topics discussed include laws dedicated to wrongful birth, negligently performed genetic testing or monitoring of the fetus; the U.S. Court case 'Johnson v. University Hospitals of Cleveland' related to causes of action based on negligence.

Wrongful birth claims are negligence actions brought on behalf of children born with disabilities or genetic disorders that were not properly diagnosed before the child's birth. The plaintiffs, typically the parents of the afflicted child, argue that without the defendant's negligence, the parents would have had the opportunity to prevent the child's birth and subsequent condition by choosing to terminate the pregnancy. A number of states have responded to the growing prevalence of wrongful birth claims by enacting legislation that bars plaintiffs from bringing wrongful birth actions. These statutes, however, pose a threat to the parental rights of disabled or terminally ill children, as they diminish abortion rights and bar parents from recovering the enormous medical and emotional damages of giving birth to the afflicted child. States should not prohibit this cause of action and, instead, the merits of these claims should be decided through the court system. [ABSTRACT FROM AUTHOR]

I had a vivid mental image of my impression of the difference between how I see prenatal diagnosis and abortion and how some members of the disability community see it. Their picture is of a line of babies waiting to be born, and a quality control officer coming along and throwing "people like them" out of the line so they never make it to earth. My picture is of a "disembodied soul," the essence of my yet-to-be-born child, waiting to be inserted into a baby-shaped container, with me standing there to make sure my child's soul gets into a well-functioning container. [ABSTRACT FROM AUTHOR]

The article focuses on increased ethical concerns and measures that the U.S. government may consider to avoid legal issues on wrongful life and potential risks of prenatal diagnosis (PND). Topic discussed includes advantages of using Amniocentesis and Chorionic Villus Sampling techniques for the test done to detect genetic abnormality in fetus and malpractice in screening by physicians, regulations, organizations and acts made for the same.

The article outlines the background of fertility industry and the legal basis of products liability to overcome problems in wrongful life in the U.S. and England. It expounds wrongful life and the trend present in its jurisprudence to allow recovery of all costs related to childrearing brought by artificial insemination. Also presented is the general principles of products liability law to provide a coherent and acceptable wrongful life action to address the problem in both countries.

The article discusses the relationship between the law of abortion and wrongful birth in the U.S. It explores how the relationship between the law of abortion and wrongful birth affects the scope of a pregnant woman's decision-making abilities. Abortion law is concerned with a pregnant woman's autonomy and is rights-based, in which a woman can abort her disabled fetus for any reason.

This article discusses law procedures adopted by various states in the U.S. to prevent wrongful doings. Many states have already made clear through their courts or legislatures whether they will recognize a cause of action for wrongful life, although some states like Virginia have not yet taken a stand on this issue. Observers suggest that the reasons offered against recognizing wrongful life are often specious and are sometimes based on a misapprehension of existing statutes or case law. The article further suggests that recognizing such a tort would be consistent with the public policy and previous case law of many states and the refusal to do so not only confuses the existing jurisprudence but also undermines the values that the states most want to uphold. Many states distinguish between wrongful pregnancy and wrongful birth actions. While as a practical matter the difference often involves whether or not the negligence resulted in the birth of a child with severe handicaps, most states, including Virginia, refuse to distinguish solely on the basis of the condition of the child and therefore include additional factors.

Reports on the U.S. Supreme Court ruling on several cases involving violations to medical laws and policies. Regulation of theft from healthcare program under the Congress' Commerce Clause Authority; Ban on wrongful birth claims in violation of due process and equal protection.

Determines the constitutionality of the Utah Wrongful Life Act which is a legislation prohibiting a cause of action based on the claim that but for the act or omission of another, a person would not have been permitted to have been born alive but would have been aborted. Factual and procedural background of the case; Analysis of the case; Affirmation of a court case relating to the issue.

Focuses on the claims of wrongful birth and wrongful conception in relation to medical malpractice in the U.S. Controversy of the claims; Causes of medical malpractice; Concept of wrongful birth and wrongful conception.

Determines the jurisprudence on battery, wrongful living, and the right to bodily integrity in San Diego, California. Discussion on medical torts; Analysis of claims for wrongful living damages; Conclusions.

Examines the ruling of the North Carolina Supreme Court on the case McAllister versus Ha which deals on the recovery of medical costs for wrongful conception. Facts on the case; Discussion on the ruling lower courts on the case; Exploration on the arguments of the parties to the case.

Criticizes the U.S. Supreme Court ruling on the case Hickman versus Group Health Plan Inc. Contention that prohibitions of wrongful birth actions are unconstitutional; Development of the wrongful birth cause of action; Violation of wrongful birth statutes on the due process clause; Implications of wrongful birth statutes on equal protection of the law.

Focuses on `wrongful birth' as a controversial malpractice action against physicians who fail to provide prenatal counseling or information. Clinical context for wrongful birth claims; Legal history of wrongful birth; Legal foundation of wrongful birth; Applying informed consent standards to wrongful birth; Conditions prompting wrongful birth suits.

Jansen expresses concern as to the legal implications of both selective reduction of pregnancy and unsuccessful attempts at termination of pregnancy using mifepristone. This commentary examines the legality of both procedures and concludes that Jansen is over-optimistic in his belief that neither procedure is likely to fall foul of the criminal laws on induced abortion. By contrast his anxieties about civil liability arising from the subsequent live birth of a damaged infant are, it is suggested, unnecessarily pessimistic. Such an action is most unlikely to succeed if brought by the infant herself and any claim on the part of the mother will normally be dependent on proof of negligence. The commentary focusses on the law in England with relevant references to other common law jurisdictions. [ABSTRACT FROM AUTHOR]

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. In this review of the international medicolegal literature, the authors present a comparative analysis of the law of medical negligence in this context and a discussion of the grounds for compensable injury resulting from medical error. The discussion is focused on the legal provisions for compensable injury awarded to the plaintiff (expectant mother, parents of the born child, and born child) and the types of injury various legal systems recognize in such cases. The aim of this article is to provide medical malpractice investigators and legal professionals with an overview of the birth cases.

Early in 2016, the widely acclaimed film Me Before You premiered nationally to a spate of disabled-led protests against the ableism in the film's core story - that of a wealthy, physically disabled young man whose romantic and sexual relationship with a young woman hired as his caregiver (and quasi-maternal or mentoring figure) leads to his choice to kill himself to avoid living further while disabled, and to bequeath his assets to her. Protested as a "disability snuff film" by leading groups like Not Dead Yet, disabled activists lambasted the film for its glorification of assisted suicide as a brave and heroic choice because of the protagonist's disability - criticizing the writers for sending a very strong message that it is better to be dead than to live as disabled, however that might be defined or understood. U.S. law has often embodied that very same message despite the existence of civil rights protections for people with disabilities, and most particularly and glaringly in its adoption of wrongful birth and wrongful life claims as cognizable in tort. In this paper, I aim to provide brief context on the nature and history of wrongful birth and wrongful life claims, examine the myriad social harms toward disabled people that stem from their assertion, explore non-ableist purposes for which these claims might be brought, and propose potential legal and policy mechanisms as alternative means for achieving their possible legitimate purposes without reliance on them. [ABSTRACT FROM AUTHOR]

Reports on a Massachusetts Supreme Court's decision regarding damages for rearing a healthy but unwanted child. Physician's negligence in performing sterilization desired by a mother for economic reasons; Determination of the amount of damages; Ways physicians can reduce their liability.

Reports on a Massachusetts Supreme Court's decision regarding lack of cause of action for wrongful life by a child inflicted with a genetic defect. Negligence in preconception genetic counseling; Possibility of carrying ectodermal dysplasia; Parents' right to sue in case of such negligence.

Reports that the California District Court held that plaintiffs in a wrongful birth action cannot recover costs or damages associated with birth as demonstrated in `Jones v. United States'. Facts of the case; Improper prescription of the physician; Examination of scientific evidence to test the validity of taking antibiotics and oral contraceptives simultaneously.

Reports on the Supreme Court of Nevada's ruling on wrongful birth in the `Greco versus United States' case. Negligence on the part of medical professionals; Failure of doctors to diagnose gross and disabling fetal defects; Rejection of arguments for wrongful life; Right of the mother to demand support from others involved in the birth of a child.

Reports that the Georgia Court of Appeals reaffirmed the state's rule against recognition of wrongful birth claims. Gale versus Obstetrics and Gynecology of Atlanta; Allegations of the plaintiff; Unconstitutionality of the decision.

Reports on the increase in the number of parents suing for wrongful births in the United States. Categories of litigation involving wrong births; Importance of proper information about the fetus; Suits involving failure in sterilization; Conditions when parents can recover costs.

Objective: To discuss the legal rights of reproductive endocrinologists and HIV-seropositive patients seeking infertility services., Design: Westlaw and LexisNexis commercial legal search engines were used to perform a legal review of statutes and cases pertaining to HIV-seropositive patients seeking health care services., Conclusion(s): Human immunodeficiency virus antidiscrimination laws apply to healthcare providers whether they practice in private clinics or a university setting. Patients infected with HIV cannot be denied access to health services solely on the basis of their HIV status. If proof exists that HIV-seropositive patients will medically benefit by a referral to another provider with more expertise, it is legally permissible to refer these patients to another provider who has more expertise in providing infertility services to HIV-seropositive patients. However, the burden will be on the reproductive endocrinologist to demonstrate that he or she lacks the capability to care for HIV-seropositive patients and that the referral was for the medical benefit of the patient and of the patient's potential offspring.

"It's a Wonderful Life," the title of Frank Capra's classic 1946 movie, seems to encapsulate a fundamental all-American conviction. Unsurprisingly, several courts and jurists have applied the movie-title maxim as the ultimate retort to one of the most intriguing questions in modern tort discourse: Is it possible to say that a severely disabled child has been harmed by the mere fact of being born? Wrongful life claimants answer in the affirmative, whereas Capra's aphorism makes a compelling counter-argument. In my opinion, the contrasting views represent equally legitimate subjective beliefs rather than objective truths, so neither may ever prevail. Without a satisfactory solution from conventional wisdom, the life-as-injury debate may be the Gordian knot of tort law. The purpose of this Article is to cut, rather than untie, the knot: Allow the child to recover without challenging or validating the deep-seated perception of life. Part I shows that hostility to liability in tort for wrongful life is almost universal, crossing lands and seas. Part II argues that this demurral is ultimately rooted in the absence of one of the central components of the cause of action. A tort action must fail because of the inability--both logical and practical--to establish "harm" under the traditional definition of this term. Part III opines that because the Gordian knot of tort law cannot be untied, it must be cut altogether. We must replace the traditional tort framework, which gives rise to an insoluble problem, with a more promising contractual framework inspired by the celebrated case of Hawkins v. McGee. In my view, the child may base an action on the claim that the defendant promised the parents that the child would be born without a certain defect and that the promise went unfulfilled. In formal terms, the child is an intended third party beneficiary of the contract between the parents and the consultant in which the latter warranted birth without a particular disability. The warranty of the future child's physical integrity and health, an integral and inseparable part of the contract, should form the basis of the child's cause of action.