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Until the discovery of the gene for cystic fibrosis (CF) in 1989, diagnostic developments were limited, and treatment focused on symptom alleviation. However, following the genetic breakthrough, some 2,000 mutations of the gene have been identified. More recently CF transmembrane conductance regulator modulator triple therapy (CFTRm) has been introduced in the form of triple therapy with ivacaftor, lumacaftor and tezacaftor (ETI), in the United States from 2019, Europe from 2020 and then Australia from 2021. The new treatment option has revolutionised both the quality of life and life expectancy of many persons diagnosed with CF. This editorial reviews major developments in the clinical care that can now be provided to patients, and reflects on the legal and ethical ramifications of the improved situation for many patients in the contexts of medical negligence, damages assessment, family law and criminal law. It also considers the difficult issues of access and equity caused by the limited availability of the triple therapy in low- and middle-income countries. [ABSTRACT FROM AUTHOR]

The frustration of the expectations generated by the incessant advance of medical science and technology has led to a constant search for compensation. In this context, legal actions known as wrongful birth and wrongful life have been presented regarding the birth of minors with disabilities. While the former are recognized in the legal systems where these actions have been raised, the latter are generally denied, generating various doubts and questions. In this research, the arguments used in different legal systems to deny the acceptance of wrongful life actions are analyzed, questioning their foundation. This topic is especially complex not only from a legal standpoint but also primarily from a bioethical perspective, as its analysis involves an appreciation of the value of human life itself. In its development, we have used a qualitative research method, paying attention to the different legal systems of both civil law and common law. The research is divided into two parts: The first contextualizes the problem and the second focuses on its development, describing the origin and evolution of wrongful life actions, their circulation in various legal systems, their general denial in most of them and the critical analysis of the arguments manifested to deny their recognition. [ABSTRACT FROM AUTHOR]

In overturning Roe v. Wade, the U.S. Supreme Court opened the floodgates for anti-abortion laws to sweep the country, radically transforming the legal landscape surrounding prenatal care. On the criminal side, centuries-old abortion bans have been given new life following Dobbs. On the civil side, statutes have empowered private citizens to sue anyone who "aids and abets" an abortion. These concerns have dominated much of the legal discourse following Dobbs, but another civil cause of action implicated in the decision has received little attention: wrongful birth. Wrongful birth is a medical malpractice claim brought by parents who assert that but for a doctor's negligent failure to detect a fetal abnormality, they would have terminated the pregnancy. Despite criticisms from disability activists and anti-abortion groups alike, the tort has served its dual aims of compensating victims and deterring negligent care for over fifty years. Scholars have long believed that the cause of action was made possible by Roe; following Roe's reversal, the tort's future is unclear. Wrongful birth is in jeopardy at the precise moment when women need it most. Deterrence and financial compensation are more important than ever in a world with more pregnancies and ambiguous legal standards. This Note examines wrongful birth's viability post-Roe and argues that the cause of action can remain available. After reviewing the tort's history and arguing that it is not dependent on Roe, this Note proposes three novel theories plaintiffs can utilize to recover for wrongful birth: (i) an expanded "loss of deliberation and preparation" theory that encapsulates the harm flowing from delayed diagnosis and the lost chance to travel for a legal abortion; (ii) a statutory interpretation analysis through which plaintiffs can argue that their child's condition would have fallen under an abortionban exception for fetal anomalies; and (iii) a choice of law analysis for plaintiffs whose prenatal care crossed state borders. [ABSTRACT FROM AUTHOR]

The prevailing view in international jurisprudence is that no one can claim compensation for the fact of being alive. This view was developed based on so-called 'wrongful life' cases, in which, due to medical malpractice, parents were deprived of the opportunity to perform a legally permitted abortion, resulting in the birth of a disabled or unwanted child. A new chapter in this category of claims was opened by the case under review. The German Supreme Court took up what, in view of the ageing of Western societies, is a very topical and socially difficult issue of a son's claim for damages for keeping his father alive. The ruling concerns a special category of civil claims so far not commented on in Polish literature or jurisprudence - 'wrongful survival'. The German Supreme Court rejected the possibility of claiming compensation under German law for prolonging human existence, even if it involved suffering. Much of the reasoning of the Court is also applicable under Polish law. However, depending on the interpretation of the norms concerning the patient's right to self-determination, the possibility of partial compensation for the costs of unlawfully keeping someone alive also seems to be acceptable under Polish law. [ABSTRACT FROM AUTHOR]

The prevailing view in international jurisprudence is that no one can claim compensation for the fact of being alive. This view was developed based on so-called 'wrongful life' cases, in which, due to medical malpractice, parents were deprived of the opportunity to perform a legally permitted abortion, resulting in the birth of a disabled or unwanted child. A new chapter in this category of claims was opened by the case under review. The German Supreme Court took up what, in view of the ageing of Western societies, is a very topical and socially difficult issue of a son's claim for damages for keeping his father alive. The ruling concerns a special category of civil claims so far not commented on in Polish literature or jurisprudence – 'wrongful survival'. The German Supreme Court rejected the possibility of claiming compensation under German law for prolonging human existence, even if it involved suffering. Much of the reasoning of the Court is also applicable under Polish law. However, depending on the interpretation of the norms concerning the patient's right to self-determination, the possibility of partial compensation for the costs of unlawfully keeping someone alive also seems to be acceptable under Polish law. [ABSTRACT FROM AUTHOR]

La frustración de las expectativas que genera el incesante avance de la ciencia y técnica médicas ha llevado a la búsqueda constante de una compensación. En este contexto, se han presentado acciones legales conocidas como wrongful birth y wrongful life con relación al nacimiento de menores con discapacidades. Mientras que las primeras son reconocidas en los sistemas jurídicos en donde estas acciones se han planteado, las segundas son denegadas de manera general, generando no obstante diversas dudas y cuestionamientos. En la presente investigación se analizan los argumentos que se emplean en diferentes sistemas jurídicos para negar el acogimiento de las acciones de wrongful life, cuestionando su fundamentación. Este tema es especialmente complejo no solo desde un punto de vista jurídico, sino también principalmente bioético, ya que su análisis implica una apreciación del valor de la propia vida humana. En su desarrollo hemos utilizado un método de investigación cualitativo, prestando atención a los distintos ordenamientos jurídicos tanto de civil law como de common law. La investigación se divide en dos partes: la primera contextualiza la problemática y la segunda se enfoca en su desarrollo, describiendo el origen y la evolución de las acciones de wrongful life, su circulación en diversos ordenamientos, su negación generalizada en la mayoría de ellos y el análisis crítico de los argumentos que se manifiestan para negar su reconocimiento

In vitro fertilisation is now a common technique for assisting couples who have difficulty in conceiving a child. Suppose, however, that through the negligence of the IVF provider a child is born who possesses a genetic disability inherited from a sperm donor, or who possesses other genetic characteristics unwanted by the parents. This article explores the legal background to, and any potential legal liability flowing from, eventualities of this kind. It examines first the New Zealand accident compensation scheme, and concludes that there is no cover for the child but some limited cover for the mother. Actions for damages by the child and/or the parents become possible to the extent that the scheme does not apply. Such actions raise particularly difficult issues of both principle and policy, but, absent legislative intervention, a reasonably satisfactory resolution of at least some of these issues is within the reach of the courts. [ABSTRACT FROM AUTHOR]

Com frequência, surgem dentro do âmbito da responsabilidade civil discussões sobre reprodução humana e consequentes danos passíveis de indenização. Igualmente, sobre a relação médico-paciente. Em dezembro de 2021, a imprensa estrangeira noticiou o caso de Evie Toombes como inédito na Inglaterra sobre o assunto. Evie venceu ação judicial proposta contra o médico de sua mãe por ter negligenciado ao não aconselhá-la a suplementar sua dieta com ácido fólico anteriormente à gravidez. Como consequência, a filha nasceu com a espinha bífida e com as deficiências decorrentes de sua injusta vida ou indesejado nascimento. Se de outro modo houvesse acontecido, não teria sido concebida. Desse modo, qual a relação do caso Evie Toombes com as chamadas wrongful actions? Trata-se de estudo de caso, alinhado à pesquisa bibliográfica.

Litigation over medical mishaps – NHS Resolution – extent of damages and costs – the relationship between doctor and midwife – celebrated or notorious cases, Mid Staffs, Morecambe Bay, Northwick Park – informing patient of risks – meaning of wrongful birth – contemporary tests for negligence. [ABSTRACT FROM AUTHOR]

Background: Prenatal diagnosis enables detection of any disease or disability of the fetus during the pregnancy of a woman. Parents whose fetus is found to have a serious disorder from antenatal testing may terminate the pregnancy if it is permitted by the law or continue with the pregnancy to term. However, the chance of terminating a pregnancy may be denied if there is prenatal negligence by the medical practitioner in terms of diagnosis or failure to advise on the test results correctly. The purpose of this research is to examine the possible legal implications of prenatal diagnosis in Malaysia. Methods: This study adopts doctrinal legal research in which the researcher examines statutes and decided cases in Malaysia, the United Kingdom (UK) and Singapore relating to abortion, wrongful birth and wrongful life claims, in order to determine the legal implications of prenatal diagnosis in Malaysia. Results: In Malaysia, abortion following a prenatal diagnosis is only legally possible if the statutory criteria in the Penal Code are met. Abortion is illegal if it is not done for therapeutic purposes. A wrongful birth action brought by a woman who claims to be deprived of the opportunity to terminate her pregnancy may be successful in Malaysia, if it can be proven that a legal abortion could have been performed if not because of the prenatal negligence of the medical practitioner. However, a wrongful life action brought in the child’s name for being allowed to be born with a disability may not be viable since the claim could hardly be established and it is against the public policy. Conclusions: Theoretically, it is possible to bring a wrongful birth action resulted from negligence in prenatal diagnosis successfully in Malaysia, but the chance is relatively slim for wrongful life action.

Background: Prenatal diagnosis enables detection of any disease or disability of the fetus during the pregnancy of a woman. Parents whose fetus is found to have a serious disorder from antenatal testing may terminate the pregnancy if it is permitted by the law or continue with the pregnancy to term. However, the chance of terminating a pregnancy may be denied if there is prenatal negligence by the medical practitioner in terms of diagnosis or failure to advise on the test results correctly. The purpose of this research is to examine the possible legal implications of prenatal diagnosis in Malaysia. Methods: This study adopts doctrinal legal research in which the researcher examines statutes and decided cases in Malaysia, the United Kingdom (UK) and Singapore relating to abortion, wrongful birth and wrongful life claims, in order to determine the legal implications of prenatal diagnosis in Malaysia. Results: In Malaysia, abortion following a prenatal diagnosis is only legally possible if the statutory criteria in the Penal Code are met. Abortion is illegal if it is not done for therapeutic purposes. A wrongful birth action brought by a woman who claims to be deprived of the opportunity to terminate her pregnancy may be successful in Malaysia, if it can be proven that a legal abortion could have been performed if not because of the prenatal negligence of the medical practitioner. However, a wrongful life action brought in the child’s name for being allowed to be born with a disability may not be viable since the claim could hardly be established and it is against the public policy. Conclusions: Theoretically, it is possible to bring a wrongful birth action resulted from negligence in prenatal diagnosis successfully in Malaysia, but the chance is relatively slim for wrongful life action.

The author comments on a pilot study by L. Meier and colleagues that developed METHAD, an artificial intelligence (AI)-based Medical Ethics Advisor tool that draws on the principlism approach and was tested using text-book cases and clinical ethics experts. Topics include argument on developing AI-tools for ethical medical decision-making in the absence of disability, how the authors developed METHAD's algorithm, and how METHAD operationalizes the principle of beneficence and non-maleficence.

Under the Congenital Disabilities (Civil Liability) Act 1976 (CDCLA) a child born disabled as a result of an occurrence prior to its birth can bring a claim against the individual responsible for that occurrence. Significantly, mothers are exempt from liability (except in relation to negligent driving) but fathers are not. Since the CDCLA came into force in 1976, there have been significant shifts in the landscape in which it operates: a more gender-neutral model of parenting; transmission of an infection to a sexual partner can be a criminal offence; and growing evidence regarding the impact of prenatal events. In addition, there is a trend for presenting prenatal harm as a problem of individual behaviour. This article presents a timely consideration of the potential for parental liability under the CDCLA and asks whether restricting the exemption of parental liability to mothers but not fathers can be justified. It is argued that the reasons for unequal parental liability in relation to gestational harm are not sufficient to justify restricting the broad exemption to mothers but not fathers and a change in the law is required to bring the CDCLA up to date with advances in the criminal law, society, and medical science. [ABSTRACT FROM AUTHOR]

Wrongful birth cases were initially brought most often for failed contraception, sterilisation or termination of pregnancy. Claims have since arisen from alleged failures in the provision of pre-conception and antenatal advice leading to a loss of opportunity to commence or terminate a pregnancy, or for failures in assisted reproduction. Within that second category, breach of duty leading to the birth of a child with disabilities has not always been enough for the claimant parent/s to recover compensation or at least for all of the child's disabilities. Two key cases show the courts' focus on scope of duty issues -- Waller v James and Khan v Meadows. Arguably the same outcomes could have been arrived at by consideration of normative causation. This article examines the two cases, but emphasises the fact-sensitive nature of those judgments in which scope of duty and normative causation filters may or may not apply. [ABSTRACT FROM AUTHOR]

Background: Prenatal diagnosis enables detection of any disease or disability of the fetus during the pregnancy of a woman. Parents whose fetus is found to have a serious disorder from antenatal testing may terminate the pregnancy if it is permitted by the law or continue with the pregnancy to term. However, the chance of terminating a pregnancy may be denied if there is prenatal negligence by the medical practitioner in terms of diagnosis or failure to advise on the test results correctly. The purpose of this research is to examine the possible legal implications of prenatal diagnosis in Malaysia. Methods: This study adopts doctrinal legal research in which the researcher examines statutes and decided cases in Malaysia, the United Kingdom (UK) and Singapore relating to abortion, wrongful birth and wrongful life claims, in order to determine the legal implications of prenatal diagnosis in Malaysia. Results: In Malaysia, abortion following a prenatal diagnosis is only legally possible if the statutory criteria in the Penal Code are met. Abortion is illegal if it is not done for therapeutic purposes. A wrongful birth action brought by a woman who claims to be deprived of the opportunity to terminate her pregnancy may be successful in Malaysia, if it can be proven that a legal abortion could have been performed if not because of the prenatal negligence of the medical practitioner. However, a wrongful life action brought in the child’s name for being allowed to be born with a disability may not be viable since the claim could hardly be established and it is against the public policy. Conclusions: Theoretically, it is possible to bring a wrongful birth action resulted from negligence in prenatal diagnosis successfully in Malaysia, but the chance is relatively slim for wrongful life action.

The article examines the legal aspects of refusing unwanted medical treatment as an unprotected right of patients. Topics discussed are reasons patients create advance directives rejecting cardiac resuscitation, medical ventilation, or other life-extending treatment, the link between wrongful life cause of action and wrongful prolongation of life claims, and legal environment of wrongful prolongation of life cases.

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 article argues that, in the context of CRISPR/Cas-9, the judicial reasoning behind denying wrongful life claims does not apply. Topics discussed include case law on prenatal and preconception torts, negligent genetic editing and purposeful imposition of defects, and elements of negligence and battery and their relation to CRISPR/Cas-9 mistaken manipulation claims.

For over six years, parents of children conceived with sperm purchased from the Atlanta-based sperm bank Xytex have sued the company for debilitating genetic conditions allegedly originating from the sperm. These lawsuits rely on a wide range of different legal theories, including fraud, negligent misrepresentation, breach of warranty, professional negligence, product liability, unfair trade practices, unjust enrichment, and battery. Until recently, state and federal courts in Georgia dismissed these claims as tantamount to claims for wrongful birth, a cause of action rejected by the Supreme Court of Georgia in 1990. The Supreme Court of Georgia recently distinguished several of the plaintiffs' theories of recovery from wrongful birth, finally enabling pending claims against Xytex to proceed to discovery. However, this may prove to be a hollow victory because the recovery available under viable claims against Xytex is likely to be insufficient to finance plaintiffs' litigation efforts. The Supreme Court of Georgia has, for practical purposes, left the victims of unscrupulous sperm banks without a remedy. [ABSTRACT FROM AUTHOR]

Developments in preconception and prenatal technologies have led to undeniable advances in how health-care providers screen and treat patients. Despite these advances, at any point errors can occur leading to misdiagnosis or a missed diagnosis. In some instances, the missed information can lead to the birth of a child with health issues where short of the error, the decision to avoid conception or terminate the pregnancy might have been made. When these lapses unfold, there exists the potential for a wrongful birth or wrongful life lawsuit to ensue. While these 2 actions are based on the same set of events, they are distinct legal claims with varying degrees of judicial permissibility. Global legal acceptability of wrongful birth and life lawsuits tends to resemble patterns in the United States. Analyzing prior wrongful birth and wrongful life claims can reveal common trends in events leading to these types of lawsuits, as well as an understanding of their potential outcomes. A familiarity with wrongful birth and wrongful life lawsuits demonstrates how these cases are unique from other forms of prenatal or birth injury tort lawsuits and can provide insights to common shortcomings in clinical practice. Applying these lessons to clinical practice highlights key approaches towards limiting the risk of certain errors leading to wrongful birth and wrongful life lawsuits, with the goal of health-care providers offering high quality health care., (Copyright © 2024 Elsevier Inc. All rights reserved.)

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.)

Loss of a chance in medical law. New precedent of wrongful birth and wrongful life claims. Perruche Case: between reticence and acceptance. Difficulties with causation, quantification and identifiable criteria. Awarding monetary damages for the lost chance of getting an abortion. Questions of medical and law ethics. [ABSTRACT FROM AUTHOR]

This article provides a history of especial importance to abortion politics today, based on research involving a dataset of over 1,200 wrongful conception, wrongful birth, wrongful life, and standard torts for prenatal injuries. In documenting the rise of these torts over the twentieth century, I specifically focus on how this domain of litigation dramatically changed beginning in the 1960s and 1970s, with the recognition of the constitutional rights to contraception and abortion. I provide an exhaustive survey of an underappreciated yet robust arena of public policy at the intersection of reproductive rights and tort law, emphasizing the reciprocal relationship between these torts and reproductive rights. State courts and legislatures continue to debate into the present about whether to ban, permit, or restrict damages in these torts, debates that have been perennial since the early 1970s. Using several timelines created in Stata to plot the annual frequency of the above cases from the late 1800s into the present, as well as several maps providing a 50-state overview, I highlight a specific arena in which reproductive rights are forged, one revealing problematic aspects of a "post-Roe era" of public policy regarding the benefits and harms of unexpected children. [ABSTRACT FROM AUTHOR]

Virtually all 'wrongful life' actions (claims brought by children for pre-birth injuries) are denied. The basis for this doctrine pivots around the refusal to allow recompense for actions which cause harm, but also result in the child's birth. We, therefore, are faced with a legal lacuna, where children suffering serious harms as a result of the latest reproductive technologies are legal orphans. This Article details the avenues of potential harm caused by modern reproductive technologies, which I call wrongful genetic manipulation (WGM), where the injured child would have no right of action. To address this void, I create a novel remedy via a legal fiction, "the conceptual being," which would enable these children to bypass current restrictions and claim an expanded class of damages, including pain and suffering, emotional injury, and unjust enrichment. [ABSTRACT FROM AUTHOR]

Constantemente, los avances en el ámbito de la reproducción plantean cuestiones bioéticas y en ocasiones, también jurídicas de gran relevancia. Así es, los diagnósticos genéticos predictivos cada vez más preciosos nos obligan a tomar decisiones tales como: la de tener un hijo con una discapacidad o anomalía, proceder a un aborto, etc. En este trabajo de investigación, se analizarán los aspectos éticos en conflicto, teniendo presente la regulación jurídica que existe al respecto de estas prácticas cada vez más cotidianas.

The question of whether criminal liability can be engaged only in the case of the violation of a subjective right or whether it operates also when a simple legitimate interest is violated, without being enshrined as a subjective right, has always preoccupied the doctrine of civil law. The discussions were amplified on the background of the evolution of the law of the criminal civil liability, from a law oriented towards the sanctioning of the guilty perpetrator, to an indemnity law, increasingly inclined towards the interests of the victim who suffers from the unjust harming of his subjective rights, but also of the legitimate interests, those which, without being consecrated, cannot be tolerated by the legal order. The debate has become increasingly animated, in the context of the proliferation of claims that aspire to compensation, under the pressure of unprecedented diversification of human rights and fundamental freedoms, making traditional good morals increasingly relaxed. This explains the tendency of many modern codifications to include them in the broader concept of public order, as a component thereof. Even the French, known for their refusal, sometimes expressed manifestly, to adopt modern solutions, have agreed to reform their Civil Code, through the Ordinance on the reform of the contract law of 10 February 2016, by relating contractual freedom only to public order. The present study intends to critically examine the configuration of the legitimate interest, seen in its double state as a condition of exercising a court action, but also as a prerequisite to repair the prejudice suffered by the victim of the harming of the interest of another, within the criminal liability, according to the legal provision in Article 1359 of the Civil Code. As the new legal provisions prove to be perfectible, the present paper advances also a number of observations, as well as proposals de lege ferenda, with the conviction that their current form requires serious efforts to interpret them, to the detriment of a case law that wants to be unitary, as well as in order to harmonize the current Civil Code with the European orientations evoked in this paper, with a view to building a European law of civil obligations. The fact that the doctrine invoked in this paper is predominantly French has as an explanation the fact that the problems connected with the chosen subject represented an object of analysis of some important civil law works within this legal area, through which a more extensive and more nuanced case law was used on this theme, taken over by the Romanian law in the matter. [ABSTRACT FROM AUTHOR]

In the present work I propose to reflect on the unquestionable respect that especially vulnerable life deserves, such as that of the Nascituri who suffer from some type of disability. This respect would constitute a basic requirement of the content of justice. The reflection is made in the context of two alleged new rights to which the so-called wrongful birth and wrongful life actions originated in Anglo-Saxon jurisprudence have given rise: it is about the right not to be born (or perhaps more precisely, the right not to have been born) and the right not to be born with relevant physical or mental limitations. [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. [ABSTRACT FROM AUTHOR]

The point of the litigation is it is a medical error to provide too much treatment, just as it is to provide too little treatment. If it is clear patients did not want it, then clinicians should not provide it. [ABSTRACT FROM AUTHOR]

This paper examines the controversial subject of pecuniary and non-pecuniary losses in wrongful birth and wrongful life cases. The author addresses these issues from a comparative perspective, presents the main arguments for and against awarding damages, and offers a critical analysis of the newly enacted rules of Serbian tort law concerning the birth of a child who would not have been born were it not for negligence on the part of a medical doctor.

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.

"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]

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