Genetics Taylor Jones Final

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To Be or Not to Be: The Problems with Wrongful Birth and Wrongful Life Suits

Taylor Jones

Genetics and the Law

Fall 2009


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In the most famous Elizabethan soliloquy to ever give high school English students

headaches, William Shakespeares character Hamlet asks the ultimate metaphysical question,

Whether 'tis nobler in the mind to suffer the slings and arrows of outrageous fortune, or to take

arms against a sea of troubles, And by opposing end them? To die: to sleep; No more. 1

Today, Hamlets question arises again in wrongful birth and life lawsuits where a parent or a

child, respectively, claims that a medical professional breached a duty of care by failing to test

for or advise parents of possible genetic disorders and that this negligence deprived the parents

of the choice to abort a child subsequently born with a disability. 2 In wrongful birth and

wrongful life lawsuits, the question is not whether it is better to live a life full of suffering than todie as it was for Hamlet, but whether it is better to live a life of suffering than to have never have

lived at all.

The complexity of this philosophical issue has led to a split among jurisdictions in the

United States. Part I of this paper examines the development and current state of the law

regarding wrongful birth and wrongful life causes of action. Part II supports the opinion that

wrongful birth and life actions fail to meet the elements of a traditional tort cause of action and

violate federal law. Part III shows the public policy reasons in support of a statutory ban of

wrongful birth and life actions, and Part IV presents a solution to the wrongful birth dilemma.

I. The development of the wrongful birth and life causes of action

Wrongful birth and life suits usually involve a claim that a medical professional failed to

properly administer, or failed to inform the parent about, a prenatal testing procedure. Currently,

parents and the fetus itself may be tested for genetic mutations associated with a disease before

or during the pregnancy. A large proportion of pregnant women in the United States have used

1 Shakespeare, William, Hamlet . Act III, scene i (5890).2 See Coleman v. Dogra , 812 N.E.2d 332 (Ohio Ct. App. 2004).

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various forms of prenatal testing. In amniocentesis, doctors analyze fluid from the amniotic sac, 3

a process that causes spontaneous abortions in 0.46% of the women who undergo the procedure .4

In fetoscopy, doctors draw blood from the fetus in utero with a three to six percent risk of

spontaneous abortion. Finally, in chorionic villi sampling, doctors withdraw and analyze tissue

surrounding the fetus eight to twelve weeks into gestation. Though there is a lack of consensus

in the field, a recent Canadian study found that 7.6% of women who received chronic villi

sampling subsequently had a spontaneous abortion .5

Less risky procedures include blood sampling, in which the medical professional samples

the mothers blood, sorts the mothers cells from the cells of the fetus, and analyzes the fetalcells within the mothers blood. 6 Doctors may also use maternal serum alpha-fetoprotein

(MSAFP) to test the fetus between fifteen and twenty-two weeks of gestation. The test involves

drawing blood from the mother and analyzing the levels of pregnancy-associated plasma protein

and hCG. Altered levels show an increased probability that the fetus has Down syndrome,

Edward syndrome, or a neural tube defect, but are not conclusive .7

The wrongful birth and life causes of action have developed, in part, as a result of the

availability and usage of the prenatal procedures described above. These procedures give parents

a chance to consider both how life with a disabled child would affect the childs life as well as

3 See Lori B. Andrews, Future Perfect: Confronting Decisions About Genetics 314 (Columbia University Press2001).4

See D. Towner, R. Curier, F. Lorey, and G. Cunningham, Miscarriage Risk from Amniocentesis Performed for Abnormal Maternal Serum Screening , 196, American Journal of Obstetrics and Gynecology, 608, 608-09 (2007)(the study found that 69 out of 15,005 women who underwent amniocentesis had abortions; 90 out of 17,045(0.53%) of women who did not undergo amniocentesis had abortions.5 Genetic Disorders and the Fetus: Diagnosis, Prevention and Treatment 181 (Aubrey Milunsky, Jeff M. Milunskyed., The Johns Hopkins University Press 2010) (1979). (1,169 women were included in the study and 11 participantcenters were used).6 Id . at 314-315.7 See John P. Cloherty, Eric C. Eichenwald & Ann R. Stark, Manual of Neonatal Care 2 (Lippincott Williams &Wilkins, Wolters Kluwer Business, 2008).

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their own life before giving birth to that child. 8 The Supreme Courts recognition of a right to an

abortion in Roe v. Wade ,9 and the development and wide usage of prenatal genetic testing, have

led courts to recognize that physicians owe a duty to parents and the fetus to exercise reasonable

care in warning the parents of an increased likelihood that the fetus has a disability. 10 This duty

is the basis of both wrongful life and wrongful birth causes of action.

A wrongful birth cause of action is a claim for relief of parents who allege they would

have avoided conception or terminated the pregnancy by abortion but for the negligence of

medical personnel in prenatal testing, genetic prognosticating, or counseling parents as to the

likelihood of giving birth to a physically or mentally impaired child.11

Where the cause of action is allowed, plaintiffs do not claim that the physicians negligence caused the genetic

defect, but rather that the doctors negligence precluded the parents choice to either give birth to

an impaired child or abort the fetus .12

Wrongful birth causes of action are recognized in Arizona, South Carolina, Alabama,

Delaware, Florida, Illinois, Maryland, Massachusetts, Missouri, New Hampshire, New Jersey,

Virginia, Washington, West Virginia, Kansas, New York, and Texas .13 The following states

8 See Paula Bernstein, Comment, Fitting a Square Peg in a Round Hole: Why Traditional Tort Principles Do Not Apply to Wrongful Birth Actions , 18 J. Comtemp. Health L & Poly 297, 302 (2001).9 410 U.S. 113 (1973).10 See Connor v. Stelly , 830 So. 2d 1102 (La. Ct. App. 2002), writ denied , 840 So.2d 551 (La. 2003); see alsoBernstein, supra note 7, at 302.11 Williams v. University of Chicago Hospitals , 281 N.E.2D 1057, 1061(Ill.App.Ct. 1996) quoting Siemieniec v.

Lutheran General Hospital, 117 Ill.2d 230, 235 (Il. 1987) (While Williams ruled on a wrongful conception cause of action, it offered definitions for both wrongful life and wrongful birth causes of action in distinguishing the casefrom those causes of action).12 See Geler v. Akawie , 358 A.2d 435 (N.J. Super. Ct. App. Div. 2003).13

See University of Arizona Health Sciences Center v. Superior Court of State In and For Maricopa County , 136Ariz. 579, 585 (Ariz. 1983); Phillips v. U.S ., 508 F. Supp. 544 (D.S.C. 1981); Robak v. U.S., 658 F.2d 471 (7th Cir.1981); Daniels v. Delaware , 120 F. Supp. 2d 411 (D. Del. 2000); Moores v. Lucas , 405 So. 2d 1022 (Fla. Dist. Ct.App. 1981); Goldberg By and Through Goldberg v. Ruskin , 128 Ill. App. 3d 1029, (Ill.App.Ct. 1984), judgment aff'd , 499 N.E.2d 406 (Il. 1986); Reed v. Campagnolo , 630 A.2d 1145 (Md. 1993); Viccaro v. Milunsky , 406 Mass.777 (Mass. 1990); Shelton v. St. Anthony's Medical Center , 781 S.W.2d 48 (Mo. 1989; Smith v. Cote , 513 A.2d 341(N.H. 1986); Berman v. Allan , 404 A.2d 8 (N.J. 1979)(where the Court held that parents could recover in a wrongful

birth suit where the statute of limitations had not run out.); Naccash v. Burger , 290 S.E.2d 825 (Va. 1982); Harbeson v. Parke-Davis, Inc ., 98 Wash. 2d 460 (Wash. 1983); James G. v. Caserta , 332 S.E.2d 872 (W. Va. 1985); Arche v. U.S. Dept. of Army , 798 P.2d 477 (Kan. 1990); Becker v. Schwartz , 413 N.Y.S.2d 895 (N.Y. App. Div.

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have judicially prohibited wrongful birth causes of action: Georgia, Pennsylvania and

Wisconsin. 14 Idaho, Indiana, Michigan, Minnesota, Missouri, North Dakota, Pennsylvania, and

South Dakota have statutorily prohibited a wrongful birth cause of action. 15 Utah statutorily

banned both wrongful birth and wrongful life causes of action, but has since repealed the law

banning the causes of action. 16

The plaintiff in both wrongful birth and wrongful life cases must prove the following

elements: that a duty existed between the medical professional and parent and/or fetus, that this

duty was breached when the doctor did not use the appropriate standard of prenatal care, and that

this breach caused the parents inability to choose to abort the disabled fetus. Finally, the plaintiff must prove that she sustained an injury because of the doctors negligence. 17

First, plaintiff must prove that a duty existed between the doctor and the parents. Courts

now recognize that a physician who knows or should have known of a reasonable risk of the

fetus being born with a genetic or congenital defect has a duty to the parents and fetus to exercise

reasonable care by warning the parents of the possible defects of the potentially incipient child.

The doctor owes this duty to the parents and the fetus 18 and may also have a duty to members of

the immediate family who may be adversely affected by the doctors negligence. 19

Second, the plaintiff must prove that the medical professional breached the standard of

1978); Nelson v. Krusen , 678 S.W.2d 918 (Tex. 1984).14 See Etkind v. Suarez , 519 S.E.2d 210 (Ga. 1999); Bianchini v. N.K.D.S. Associates Ltd. , 616 A.2d 700 (Pa. Super.Ct. 1992); Wisconsin, Mackenzie v. Miller Brewing Co. , 623 N.W.2d 739 (Wis. 2001).15

See Idaho Code Ann. 5-334(1) (2004), recognized by Vanvooren v. Astin , 111 P.3d 125, 127 (Idaho 2005); Ind.Code Ann. 34-12-1-1 (LexisNexis 1998); Mich. Comp. Laws Ann. 600.2971(2) (West 2007); Minn. Stat. Ann. 145.424(1) (West 2005); Mo. Ann. Stat. 188.130(1) (West 2004); N.D. Cent. Code 32-03-43 (1996); 42 Pa.Cons. Stat. Ann. 8305(b) (West 2007), following Ellis v. Sherman , 515 A.2d 1327, 1329-30 (Pa. 1986); S.D.Codified Laws 21-55-1 (2004).16 U.C.A. 1951, c. 58, 1 (2008) repealed 78-11-24-78-11-25.17 See Coleman , 812 N.E.2d at 332.18 See Connor, 830 So. 2d at1102.19 Id. (Where physician defendant had a duty to parents first child born with cystic fibrosis, but also to anyimmediate members of the family who were adversely affected by the physicians negligence).

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care owed to the plaintiff. Failure to properly carry out a prenatal test 20 may constitute a breach

of the standard of care. A physician may also breach her duty by failing to inform the parent(s)

of genetic testing services which might reveal genetic or other defects in the fetus ,21 failing to

follow up on the suggestion of prenatal testing, 22 failing to warn parents of the possibility of a

genetic disorder based on the couples other child or children with the same disorder ,23 or failing

to diagnose one or both of the parents with a hereditary disease. 24 Finally, or failure to advise a

couple about genetic risks associated with their racial or ethnic group could be a breach of duty. 25

To win a wrongful birth or life claim, the plaintiff must also prove that this breach was

the proximate cause of the injury sustained by plaintiff. However, unlike most medicalmalpractice tort claims, the plaintiff in a wrongful birth suit does not claim the negligence of the

doctor caused the childs disorder, but that the doctors negligence in prenatal care was the

proximate cause of the deprivation of the parents choice of aborting a disabled child .26 The

plaintiff must prove that (s)he would have actually aborted the fetus had the doctor not been

20 See Keel v. Banach , 624 So.2d 1022, 1024 (Ala.,1993) (Where doctor had duty to perform subsequent sonogramtests on a mother who gave birth to a child born with multiple congenital deformalities).21 See Basten v. U.S ., 848 F. Supp. 962 (M.D. Ala. 1994)(Doctor had a duty to inform the mother of the availablilityof alpha-fetoprotein testing which would have revealed the childs spina bifida).22 See Geler , 358 A.2d at 435 (physician warned that the fetus may have Tay-Sachs disease on parents first visit.The parents saw another doctor, but neither doctor further tested or discussed Tay-Sachs disease. The second doctor

breached a duty to follow up when he failed to provide genetic tests or counseling to the parents after seeing noindication that another doctor had ordered the test).23 See Schroeder v. Perkel , 432 A.2d 834, 840 (N.J. 1981) (Doctor breached his duty when he failed to diagnose the

parents first child with cystic fibrosis until the the mother was eight months pregnant with her second child, whowas born with cystic fibrosis).24 See Naccash v. Burger, 290 S.E.2d 825, 829 (Va. 1982)(valid claim against doctor who mislabeled fathers blood

test for the Tay-Sachs carrier gene and where child was born with the Tay-Sachs disease); but see Chen v. Connors,2008 WL 4906273, 1 (Mass.App.Ct. 2008)(no wrongful birth claim when doctor did not test parents to see if theywere carriers of Thallassemia and their child was born with Thallassemia Major); see also Johnson v. Superior Court , 101 Cal. App. 4th 869, 889 (Cal.Ct.App. 2002) (Where the court does not recognize wrongful life causes of action, but left room for the parents to bring a wrongful birth claim against a sperm bank who did not inform the

parent that the donor had a hereditary heart disease).25 See Munro v. Regents of University of California , 215 Cal.App.3d 977 (Cal.Ct.App. 1989) (doctors breached their duty by not testing parents of a child with Tay-Sachs disease for the carrier gene when the parents were Jewish).26 See Canesi ex rel. Canesi v. Wilson , 730 A.2d 805 (N.J. 1999); Provenzano v. Integrated Genetics , 22 F.Supp. 2d406 (D.N.J. 1998).

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California common law tort principles to recover general damages, including pain and

suffering. 35 Later, in Turpin v. Sortini ,36 the Supreme Court of California ruled in favor of the

infant plaintiff against a doctor who failed to discover the parents first child was completely

deaf and, hence, failed to warn the parents a subsequent child would probably also inherit the

deafness. 37 The Court differed from Curlender , however, when it held that a plaintiff could not

receive general tort damages because it is impossible to determine whether being born is an

injury in fact. 38 Plaintiff child was allowed to receive damages for the extraordinary expenses

for specialized teaching, training, and hearing equipment that the child would incur during her

lifetime.39

The Washington Court followed suit in Harbeson v. Parke-Davis, Inc., 40where it upheld a

wrongful life cause of action against a doctor who prescribed Diantin to the mother of twins,

assuring her it would not harm her fetuses, yet the children were born with fetal hydantoin

syndrome due to the drug. The court allowed the wrongful life cause of action and ruled in favor

of the plaintiff, 41 but unlike the court in Turpin , the Washington Court allowed the plaintiff to

recover full damages, including damages for emotional injuries, although the emotional benefits

from the childs birth could offset those damages .42 New Jersey allowed the wrongful life cause

of action in Procanik by Procanik v. Cillo 43 when it held that the successful infant plaintiff in a

wrongful life suit could recover damages for the extraordinary costs associated with his disability

but not general damages.

35 Id . at 831.36 See Turpin v. Sortini , 31 Cal.3d 220 (Cal. 1982).37 Id. at 224.38 Id . at 235.39 Id. at 348.40 See Harbeson v. Parke-Davis, Inc. , 656 P.2d 483 (Wash. 1983) (en banc).41 Id. at 494-497.42 Id. at 493.43 Procanik by Procanik v. Cillo , 478 A.2d 755 (N.J. 1984).

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The following states have judicially rejected the wrongful life cause of action: Alabama,

Arizona, Colorado, Delaware, Florida, Georgia, Illinois, Kansas, Kentucky, Louisiana,

Maryland, Massachusetts, Nevada, New Hampshire, New York, North Carolina, Ohio, South

Carolina, Texas, Virginia, West Virginia, Wisconsin, and Wyoming .44 Idaho, Indiana, Michigan,

Minnesota, Missouri, North Dakota, Pennsylvania, and South Dakota have statutorily banned or

limited the wrongful life cause of action .45 Utah repealed its ban on both causes of action. 46

Maine is the only state that has statutorily provided for a wrongful life cause of action. 47

II. The Case Against Wrongful Life and Wrongful Birth Causes of Action

All state legislatures should pass legislation similar to the Michigan statute, which barswrongful life claims and wrongful birth claims, regardless of the health of the child when born,

with an exception for intentional or grossly negligent act(s) or omission(s) that could be

brought in a medical malpractice claim .48 This section offers both legal justifications and public

44 See Elliott ex rel. Elliott v. Brown , 361 So. 2d 546, 548 (Ala. 1978); Walker ex rel. Pizano v. Mart , 790 P.2d 735,740-41 (Ariz. 1990) (en banc); Lininger ex rel. Lininger v. Eisenbaum , 764 P.2d 1202, 1210-11 (Colo. 1988) (en

banc); Garrison ex rel. Garrison v. Med. Ctr. of Del. Inc ., 581 A.2d 288, 293-94 (Del. 1990); Kush v. Lloyd , 616 So.2d 415, 423 (Fla. 1992); Spires v. Kim , 416 S.E.2d 780, 781-82 (Ga. Ct. App. 1992); Siemieniec v. Lutheran Gen. Hosp. , 512 N.E.2d 691, 702 (Ill. 1987); Goldberg v. Ruskin , 499 N.E.2d 406, 410 (Ill. 1986); Bruggeman ex rel. Bruggeman v. Schimke , 718 P.2d 635, 642 (Kan. 1986); Grubbs ex rel. Grubbs v. Barbourville Family Health Ctr., P.S.C. , 120 S.W.3d 682, 689-90 (Ky. 2003); E.g., Pitre v. Opelousas Gen. Hosp ., 517 So. 2d 1019, 1024-25 (La. Ct.App. 1987), aff'd in part, rev'd in part, 530 So. 2d 1151 (La. 1988); Kassama , 792 A.2d at 1123; E.g., Viccaro v.Milunsky , 551 N.E.2d 8, 12-13 (Mass. 1990); Greco ex rel. Greco v. United States , 893 P.2d 345, 347-48 (Nev.1995); Smith ex rel. Smith v. Cote , 513 A.2d 341, 353-55 (N.H. 1986); Kush v. Lloyd , 616 So. 2d 415, 423-24 (Fla.1992); James G. v. Caserta , 332 S.E.2d 872, 882-83 (W. Va. 1985); Azzolino ex rel. Azzolino v. Dingfelder , 337S.E.2d 528, 532-33 (N.C. 1985); Hester ex rel. Hester v. Dwivedi , 733 N.E.2d 1161, 1166-68 (Ohio 2000); Willis exrel. Willis v. Wu, 607 S.E.2d 63, 71 (S.C. 2004); Nelson v. Krusen, 678 S.W.2d 918, 924-25 (Tex. 1984); Glascock v. Laserna , 30 Va. Cir. 366, 369 (Va. Cir. Ct. 1993); Barnes v. Head , 30 Va. Cir. 218, 221-22 (Va. Cir. Ct. 1993);

James G. v. Caserta , 332 S.E.2d 872, 879-81 (W. Va. 1985); Dumer ex rel. Bloch v. St. Michael's Hosp ., 233 N.W.2d 372, 375-76 (Wis. 1975); Beardsley v. Wierdsma , 650 P.2d 288, 289 (Wyo. 1982).45 See Idaho Code Ann. 5-334(1) (2004); Ind. Code Ann. 34-12-1-1 (LexisNexis 1998); Mich. Comp. Laws Ann. 600.2971(2) (West Supp. 2007), following Eisbrenner v. Stanley , 308 N.W.2d 209, 212-13 (Mich. Ct. App. 1981);Minn. Stat. Ann. 145.424(1) (West 2005); Mo. Ann. Stat. 188.130(1) (West 2004); N.D. Cent. Code 32-03-43(1996); 42 Pa. Cons. Stat. Ann. 8305(b) (West 2007); S.D. Codified Laws 21-55-1 (2004).46 U.C.A. 1951, c. 58, 1 (2008) repealed 78-11-24-78-11-25 (before the legislature repealed the statute banningthe causes of action, the Supreme Court of Utah uheld the Constitutionality of the statute in Wood v. University of Utah Medical Center , 67 P.3d 436, 443 (Utah 2002)).47 See 24 Me. Rev. Stat. Ann. tit. 24 2931(3) (2000).48 See Mich. Comp. Laws Ann. 600.2971(2) (West Supp. 2007).

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policy justifications in favor of the legislative prohibition of both causes of actions.

A. Legal arguments supporting a statutory ban of wrongful birth and life actions.

1. Courts should dismiss wrongful birth and life causes of action for failure

to state a claim and wait for the legislature to act.

Courts which allow wrongful birth and life causes of action consider them tort suits, with,

for example, the Harbeson court finding that a wrongful life action conforms comfortably to the

structure of tort principles as a logical and necessary development to tort law. 49 There is a

strong argument, however, that wrongful birth and life claims are not legally cognizable as a tort

claims. Wrongful birth and life claims meet the first two elements of a tort claim as the

physician owes a duty to the parent, child, or both. The medical professional can breach this

duty by negligently performing prenatal genetic tests or not performing them at all. 50 However,

the third and fourth elements of a tort claim are not met, leading some states to justifiably

dismiss wrongful birth and life cases for failure to state a claim. 51

a. The causation element is not met in wrongful birth and life suits.

The third essential element in medical malpractice torts, that physicians caused physical

injury to the plaintiff, is not met in wrongful birth or life causes of action because doctors do not

cause the genetic disabilities in the children. Courts that accept wrongful birth claims reason that

the doctors negligence in prenatal care caused the deprivation of the parental choice of aborting

a genetically disabled child. 52 When courts that allow the claim award damages for the

extraordinary costs associated with the genetic defect, they go against the generally accepted tort

principle that liable defendants should pay for the harm they actually caused since the doctor did

49 See Harbeson , 656 P.2d at 488.50 See Connor , 830 So. 2d at 1102.51 See Azzolino v. Dingfelder , 337 S.E.2d 528 (N.C. 1985); Atlanta Obstetrics and Gynecology Group v. Abelson ,398 S.E.2d 557 (Ga. 1990).52 See Canesi , 730 A.2d at 805; Provenzano, 22 F.Supp. 2d at 406.

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not cause the genetic defect or the birth of the fetus. The Georgia Supreme Court rightfully

disallowed a wrongful birth cause of action under a tort theory that holds doctors liable, even to

a limited extent, for an impairment which the child unquestionably inherited from her parents

and an impairment which was already in existence when the parents first came into contact with

the physician. 53

Legal precedent exists for a patient to bring suit against a doctor who negligently failed to

detect a preventable and harmful condition. In such cases, plaintiffs recover for their loss of a

chance to be cured. Wrongful birth and life claims are distinguishable from such suits. While in

loss of chance suits the doctors diagnosis of the disease directly affects whether the patient will be cured, in wrongful life and birth suits the doctors diagnosis of a child with a genetic disorder

has no effect on whether the child can be cured because the condition is incurable. In wrongful

birth and life suits, a doctors failure to make a timely diagnosis does not cause the condition to

worsen as it would in loss of chance malpractice claims. 54

There is another problem with the causation element. In order for a court to find the

medical professional caused the injury, the parents must convince a jury that they would have

aborted the fetus, a highly subjective determination based on after-the-fact, possibly self-

serving, testimony that the parents would have sought an abortion had they known of the childs

potential disability. 55 A finding that the doctor caused the injury is dependent on speculative

testimony of the very people suing the defendant regarding retrospective decisions that were

never made.

53 See Atlanta Obstetrics , 398 S.E.2d at 560 (It should be reemphasized here that the plaintiff only alleged that thedefendants negligently caused or permitted an already conceived and defective fetus not to be aborted. The plaintiffsdo not allege that the defendants in any way directly caused the genetic defect. Therefore, the only damages the

plaintiffs allege they have suffered arise, if at all, from the failure of the defendants to take steps which would haveled to abortion of the already existing and defective fetus.).54 Id at 715.55 See Taylor v. Kurapati , 600 N.W.2d 670, 688 n.44 (Mich. Ct. App. 1999).

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That the plaintiff was injured as a result of the defendants breach, the final element in a

tort case, is also not met in wrongful birth and life cases. In wrongful birth suits, the injury is the

prevention of the parents from the choice of aborting the disabled fetus. Essentially, the injury is

the life of the disabled fetus. As the Supreme Court of Georgia stated, in order to satisfy that

prong we must recognize the life of the child as the injury which has been inflicted upon plaintiff

by the defendants. 56 Since the defendant doctor did not cause the genetic defect, but only,

arguably prevented an abortion, the only possible injury is the life itself. Courts that ban the

cause of action are justified in finding that human life is precious and that courts and juries are

unable to find harm in allowing a human to live.57

In the judicial and legislative systems of the United States, life is always preferrable to

non-life. The entire system of government is based on the equal value of each individual human

life and the right of each individual person to life ,58 and the criminal codes reserve the gravest

punishments for the taking of anothers life. 59 Under Roe , fetuses are not considered life, but in

all other areas of law, once a person is born, their life is valuable. Courts should respect the

value of human life enough to hold that once a person is born, their existence is valuable and can

never be an injury, when "the lives of all human beings have equal intrinsic value and deserve

maximum protection irrespective of the subjective quality of each life and the societal benefit

generated by its protection. 60 Courts that allow wrongful birth causes of action wrongly step

into entirely untraditional analysis by holding that the existence of human life can constitute an

56 See Atlanta Obstetrics , 398 S.E.2d at 561.57 See Eliot v. Brown , 361 So.2d 546 (Ala. 1978), Walker ex rel Pizano v. Mart , 790 P.2d 735 (Ariz. 1990); Liniger v. Eisenbaum , 764 P.2d 1202 (Colo. 1988).58 The Declaration of Independence para. 1 (U.S. 1776) (We hold these truths to be self-evident, that all men arecreated equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life,Liberty and the pursuit of Happiness.).59 See Ronan Perry, Article, Its a Wonderful Life , 93 Cornell L. Rev. 329, 368 (2008).60 Id.

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injury cognizable at law. 61 Finally, life cannot be an injury because there is no external

evidence to prove it is an injury, which is required for tort injuries. 62

b. The injury element is not met in wrongful birth and life cases.

The elements of duty, breach, and causation are essentially the same in wrongful birth

and life cases. In both causes of action, parents must prove that, had the doctor not been

negligent, they would have chosen to abort. The claims become distinct regarding the injury. In

wrongful birth suits, the parents claim that the physician breached a duty owed to them resulting

in the childs birth, the injury. In wrongful life suits, the child claims that the doctor owed a duty

to him when he was unborn; his own birth is the injury. In both causes, the plaintiff claims thatlife is an injury, a claim that fails to fit within the meaning of injury in malpractice claims.

Wrongful life and birth actions cannot fit within a traditional tort when damages are

impossible to calculate because they are logically self-defeating. 63 The purpose of damages in

a tort action is to restore the plaintiff to where she was before the negligent conduct and injury

occurred. 64 Had the negligent conduct not occurred, the child would be in a state of non-

existence. 65 For courts to properly analyze the damage issue, juries would be required to

measure the difference in value between life in an impaired condition and the utter void of non-

existence. 66 As Justice Dickson stated in his dissent in Bader v. Johnson , juries are not

equipped to calculate damages dependent upon the relative benefits of an impaired life as

opposed to no life at all. 67 Proponents of the causes of actions argue that courts have always

61

Azzonlino v. Dingfelder , 337 S.E.2d 528, 533-34 (N.C. 1985).62 See Perry, supra note 60, at 369.63 Id. at 361.64 See Mitchell J. Waldman, Prenatal Injuries: Wrongful Life, Birth, or Conception , 62 AM. JUR. 2D PrenatalInjuries 92, 103 (1990); see also Perry, supra note 58, at 361.65 See Janet L. Tucker, Wrongful Life: A New Generation , 27 J. Fam. L. 673 (1988-89).66 Waldman, supra note 64, 103.67 See Bader v. Johnson , 732 N.E.2d 1212, 1223 (Dickson, J., dissenting) (Ind. 2000); see also Greco v. United States , 893 P.2d 345 (Nev. 1995).

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grappled with damages that are hard to quantify and wrongful life cases are no different.

However, there is an important difference between asking a jury to compare two known states of

existence (for example, life with a leg and life without a leg due to a doctors negligent

amputation) and asking them to compare a known state of existence and an entirely unknown

state of existence as the wrongful life action does .68

To further elaborate, even the courts that allow the wrongful life cause of action disallow

the plaintiff from receiving general tort damages because it is impossible to determine whether

being born is an injury in fact and how much that injury is worth. 69 In Procanik , the Court

plainly stated that there is no rational way to measure non-existence or to compare non-existence with the pain and suffering of his impaired existence. 70 In a seemingly illogical move,

the Court disallowed plaintiff from receiving damages that resulted from the plaintiffs alleged

injury, the life of the child, but not for an injury the medical professional did not cause, the cost

of the genetic defect. The only rationale the Court gave for allowing one and not the other was

that the later damages could be predictably measured. 71 This result-oriented decision ignores

the precedential elements of tort law, which require that the damages reflect the injury the

defendant caused, not merely an arbitrary amount because it is easily measured.

Courts that allow wrongful birth and life causes of action must ask juries to offset the

amount of love and affection from the child from damages for the disabled life itself an

impossible task according to the North Carolina Supreme Court. 72 Such a calculation is

unquantifiable, as the Michigan Court of Appeals opines,

68 See Perry, supra note 64, at 363.69 Id . at 346; see also Turpin , 31 Cal.3d at 220.70 Procanik , 478 A.2d at 763 (where the court allowed did not allow plaintiff to recover for pain and suffering butcould claim damages for the medical expenses occuring as a result of the handicap).71 Id.72 See Azzonlino , 337 S.E.2d at 534-35.

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How, for example, would a hypothetical Grecian jury, operatingunder Michigan jurisprudence, measure the benefits to the parentsof the whole life of Homer, the blind singer of songs who createdthe Illiad and the Odyssey? Absent the ability to foretell the futureand to quantify the value of the spoken and then the written word,

how, exactly, would the jury do that?73

Also, courts that allow the suits do not require parents to mitigate the damages through

putting up their child for adoption. 74 Courts often require plaintiff to have mitigated the

damages, if at all possible, and should not create a singular and illogical exception to this

requirement in wrongful birth and life cases.

Even the courts that allow the causes of action admit the impossibility of calculating

damages in order to restore a plaintiff child to the point (s)he was before the negligence; the

claims do not fit within the bounds of tort law and should be dismissed for failure to state a

claim. Public policy favoring the allowance of the causes of action does not give courts the

authority to legislate from the bench. 75 In light of the impossibility of fitting these causes of

action into a traditional tort, courts should follow the Supreme Court of North Carolina and

others 76 and hold that the legislature, not the court, should deal with issues surrounding wrongful

birth and life. The court is not required to attempt to squeeze its results into the mold of

conventional tort concepts which clearly do not fit, 77 and the legislature is the forum where the

cause[s] of action can by thoroughly and openly debated and ultimately decided. 78

2. Wrongful birth and life actions create a subhuman class and violate theAmericans with Disabilities Act.

Title II of the Americans with Disabilities Act provides that:

73 Taylor , 600 N.W.2d at 670.74 See Azzonlino , 337 S.E.2d at 534-35.75 See Alquijay v. St. Lukes Roosevelt Hospital Center , 473 N.E.2d 244, 245-46 (N.Y. 1984).76 See Taylor , 600 N.W.2d at 670.77 Id . at 537.78 Atlanta Obstetrics , 398 S.E.2d at 560.

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no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be deniedthe benefits of the services, programs, or activities of a publicentity, or be subjected to discrimination by any such entity. 79

Most children in wrongful birth and life suits are disabled under the ADA because they

have a physical or mental impairment that substantially limits one or more of the major life

activities of such individual. 80 Usually, in order to succeed in a wrongful birth or life claim,

plaintiffs must show that the child is severely disabled .81 Most children in successful suits have

seriously disabling diseases such as Tay-Sachs disease, Down syndrome, cystic fibrosis or

similarly severe diseases .82 Children in such lawsuits, who do not have severe disabilities are

still within the third prong of the definition of disabled because both the court and the parents

must regard the child as disabled for the parent to succeed on the claim. 83

The judicial and statutory endorsement of the claims constitutes discrimination against

the disabled by a public entity in violation of Title II, which provides that no qualified disabled

person shall be subjected to discrimination 84 by a public entity. Actions of a public entity

include the actions of any [s]tate or local government. 85 State action includes judicial and

legislative allowance of wrongful birth and life claims. 86 Tort common law constitutes state

action. 87 Parental discrimination against the fetus due to her disability cannot violate the ADA

79 Equal Opportunity for Individuals with Disabilities, 42 U.S.C. 12132 (1990).80 Id. The ADA defines a disabled person under the Act as a person with (A) a physical or mental impairment thatsubstantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.81See Foy v. Greenblott , 141 Cal.App.3d 1, 14 (Cal.Ct.App. 1983) (Court dismissed a wrongful life suit wherenurses in a mentally facility negligently failed to give reproductive counseling to an incompetent patient because the

child did not suffer a hereditary impairment facilitators could have forseen).82 See Darpana M. Sheth, Article, Better off Unborn? An Analysis of Wrongful Birth and Wrongful Life ClaimsUnder the Americans with Disabilities Act , 73 Tenn. L. Rev. 641, 657 (2006).83 Id. at 657.84 Equal Opportunity for Individuals with Disabilities, 42 U.S.C. 12132 (1990).85 Equal Opportunity for Individuals with Disabilities, 42 U.S.C. 12131(1)(A) (2000).86 See 15 Am. Jur. 2d Civil Rights 10 (2000) (State action includes action by a state legislature [and] state courts ...).87See Sheth, supra note 83, at 662.

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because the parents are a private party, not a public entity or a place of public accommodation.

A childs decision to discriminate against himself in bringing a wrongful life suit is not

actionable under the ADA for the same reasons. On the contrary, the court is a public entity and

must discriminate based upon disability in wrongful birth and life suits. The plaintiff cannot

succeed without proving s(he) is disabled, 88 and it is the state's decision to make the parents'

discriminatory reproductive decisions a legal right to which they are entitled to compensation if

deprived. 89 While private plaintiffs in these causes of action ask the court to discriminate

against them based on their disability, it is the courts allowance of wrongful birth and life causes

of action that violate the ADA. Congress intended the prohibitions of the ADA to apply whether or not the disabled person wishes to be discriminated against as evident in its provision for

federal prosecution of public entities for violating the ADA without a private plaintiff.

The claims further violate the ADA by passively endorsing eugenic abortions of people

with disabilities through judicial decisions, placing less value on the lives of disabled individuals

than on the lives of non-disabled individuals. To violate the ADA, a public entity does not

necessarily have to possess discriminatory intent, but must only create a disparate impact on

disabled people. 90 The allowance of wrongful birth claims necessarily causes a disparate impact

on people with disabilities because the causes of action are only available to people with

disabilities. As the Supreme Court of Kentucky pointed out, A claim for wrongful life must be

rejected because it would definitely discriminate against disabled persons and could lead to a

eugenic culture where the unfit are made disposable. 91

88 Id. at 658.89 Id . at 663.90See Regional Economic Community Action Program, Inc. v. City of Middletown , 294 F.3d 35, 52 (N.Y.Ct.App.2002) (the FHA and the ADA provide relief not only from policies adopted and actions taken with a discriminatoryintent, but also from the application of facially neutral standards that have an unlawful discriminatory effect upon a

protected class.).91 Grubbs ex rel. Grubbs v. Barbourville Family Health Ctr., P.S.C ., 120 S.W.3d 682, 692-93 (Ky. 2003)

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If wrongful birth and life causes of action are found to violate the ADA, it is possible that

the Roe v. Wade decision could also violate the ADA. Such an implication is unlikely, however.

Wrongful birth and life causes of action violate the ADA because a public entity, the court,

discriminates. Title II only applies to government action that constitutes discrimination. Roe

held that a woman has the right to abort her fetus up to three months after conception for any

reason. 92 When a woman aborts a fetus, she acts as a private individual and not as a public

entity. Even if she decides to abort solely based on the fetuss disability within the purview of

Roe , she does not violate the public entity prohibition of the ADA.

The only foreseeable way a holding that wrongful birth and life causes of action violatethe ADA would implicate Roe would be if the causes of action violated Title III of the ADA.

Title II prohibits any place of public accommodation from discriminating based on disability. 93

If a court considered a hospital or clinic a place of public accommodation, it could interpret the

abortion of a fetus on the basis of the fetuss disability as discrimination by public

accommodation because the clinic provides the facility and doctors who perform the

discriminatory abortion. This would prohibit doctors at places of public accommodation from

engaging in abortions based on the fetus disability, limiting the places women could have

discriminatory abortions. This interpretation would probably fail, however, because a fetus is

not considered a person in civil law.

When courts and legislatures allow wrongful birth and life claims, they act as public

entities under the ADA. Courts that allow the claims violate the ADA by discriminating based

on the childs disability when deciding whether the childs disability is injurious enough to bring

(Wintersheimer, J., concurring).92 410 U.S. 113, 164 (1973).93 Equal Opportunity for Individuals with Disabilities, 42 U.S.C. 12182(a) (2000) (No individual shall bediscriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities,

privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases(or leases to), or operates a place of public accommodation).

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the claim. Courts decisions of these claims also create a disparate impact between disabled and

the healthy in violation of Title II of the ADA.

3. State statutory bans of wrongful birth and life actions are constitutionally

sound.

Those opposed to the statutory prohibition of both causes of action argue that such

prohibitions violate the due process clause by robbing parents of their procreative rights. 94 This

argument fails for two reasons.

First, a statutory ban on wrongful life causes of action neither regulates nor directly

affects the right to an abortion articulated in Roe v. Wade , as Roe implies no limitation on the

authority of a State to make a value judgment favoring childbirth over abortion. 95 Further, the

statutory banning of the wrongful birth and life causes of action is state action favoring childbirth

over abortion by refusing to recognize that a disabled childs life is an injury .96 The state has no

obligation to take the affirmative step of imposing civil liability on a party for failing to provide

a pregnant woman with information that would make her more likely to have an elective and

eugenic abortion. 97

Second, the states prohibiting statutory bans on both causes of actions have compelling

interests in doing so such as maintaining consistency with their tort jurisprudence, 98 avoiding

violation of the Americans with Disabilities Act or the Equal Protection Clause and curbing

eugenic abortion of disabled fetuses .99

B. Policy arguments in support of statutory bans of wrongful birth and life actions.

94 See Christy Hetherington, Notes and Comments, Rhode Island Facing the Wrongful Birth/Life Debate: Pro-disabled Sentiment Given Life , 6 Roger Williams U.L. Rev. 565, 571 (2001).95 Taylor , 600 N.W.2d at 687.96 Id. at 687 citing Maher v. Roe , 432 U.S. 464, 474 (1977).97 Taylor , 600 N.W.2d at 689.98 Atlanta Obstetrics , 398 S.E.2d at 560.99 See Bernstein, supra note 8, at 317-318.

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1. Wrongful birth and life actions encourage eugenics.

In deciding whether or not to allow the causes of action, numerous courts have

considered the possibility of eugenic abortions increasing as a result of wrongful birth actions

and the negative consequences of such an increase. In Curlender v. Bio-Science Lab , the court

established that choosing to abort an undesirable fetus is by definition a eugenic abortion. 100

Similarly, the Harbenson majority questioned,

Are these developments the first step towards a Fascist-Orwelliansocietal attitude of genetic purity, or Huxleys brave new world,or do they provide positive benefits to individual families and allsociety by avoiding the vast emotional and economic cost of defective

children?101

In the end, the court embraced the second option .102 While the law, which allows women

to abort a fetus for any reason, supports the Courts assessment, a more expansive view is helpful

when considering eugenics. Simply because the law allows a woman to abort her fetus for any

reason does not necessitate the Courts endorsement of a cause of action which endorses eugenic

abortions by giving damages to people who claim to have desired to obtain eugenic abortions.

Courts that do not allow the causes of action are justifiably more careful regarding eugenic

abortions. The Court of Appeals in Michigan ruled to protect against eugenic abortions when it

found that:

If one accepts the premise that the birth of one defective childshould have been prevented, then it is but a short step to acceptingthe premise that the birth of classes of defective children should besimilarly prevented, not just for the benefit of the parents but alsofor the benefit of society as a whole through the protection of thepublic welfare. 103

Allowing wrongful birth causes of actions forces a determination of what, exactly,

100 Vurlender v. Bio-Science Lab , 106 Cal. App.3d 811, 829 (Cal.Ct.App. 1980).101 Harbeson , 656 P.2d at 492 (Wash. 1983).102 Id ., generally.103 Taylor , 600 N.W.2d at 688.

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constitutes a defective fetus. 104 While most states that allow the causes of action limit them to

claims where the child is severely disabled, courts could eventually expand wrongful birth and

life suits to include claims that the fetus was the wrong gender ,105 wrong size, or had the wrong

hair color. While women have a choice to abort their fetus for eugenic reasons under Roe and its

progeny, the court need not validate eugenic abortions by compensating only the parents who are

willing to prove they would have had a eugenic abortion. Courts should avoid setting a

precedent allowing parents to recover expenses incurred from an unwanted child. 106

If the Court desires to adhere to the philosophy behind the Equal Protection Clause and

Declaration of Independence that all men are created equal,107

it should deny, when possibleand within the bounds of the law, the assumption that defective children or children that do not

meet all of their parents preferences are less equal or valuable as other children. Supporters of

wrongful life cases of action find a distinction between disabled lives and lives that are

unsatisfactory to the parents, arguing that society can approve of the abortion of disabled fetuses

through wrongful life claims without endorsing the abortion of unsatisfactory claims. 108

The problem with the above distinction comes in deciding which reasons for abortion are

satisfactory and which are not. Many parents would deem a child with a disability satisfactory;

conversely, parents may find a child with the wrong hair color unsatisfactory. The ADA shows

Congress intent that the disabled are just as valuable as non-disabled people. At the very least,

courts should comply with the intent of the ADA by refusing to acknowledge, through tort law,

that aborting a fetus because it is disabled is a satisfactory choice.

104 See Azzolino , 337 S.E.2d at 535.105 See Bader v. Johnson , 732 N.E.2d 1212 (Ind. 2000)(Dickson dissenting).106 Id. at 1223. (Dickson, J., dissenting).107 The Declaration of Independence para. 1 (U.S. 1776) (We hold these truths to be self-evident, that all men arecreated equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life,Liberty and the pursuit of Happiness.).108 See Perry, supra note 69, at 355.

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2. Prohibiting wrongful birth and life lawsuits will not necessarily lead tomore negligence on the part of geneticists and doctors.

States that allow the causes of action are concerned that prohibition of the actions would

result in immunization of doctors and geneticists from liability ,109

decrease the full disclosure of

information from physicians to parent(s), and prevent plaintiffs from redressing a wrong. 110

Advocates of wrongful birth and life suits claim the causes are necessary to alleviate the childs

suffering. Assuming this is true, it is still not enough to justify the implementation of the cause

of action when tort law is not a panacea for all the suffering in the world; it focuses on cases

where the wrongdoing of a particular defendant caused harm to a particular victim. 111 Since the

defendant medical professional did not cause the suffering of the plaintiff, as discussed above,

tort law is not the proper forum to alleviate plaintiffs suffering. 112

When deciding whether to allow the two causes of action, legislatures should weigh the

value of allowing a plaintiff to be compensated against the inherently speculative nature of

wrongful birth and life claims that require parents to prove that they would have aborted the fetus

in a hypothetical situation. The Pennsylvania Supreme Court upheld statutes barring wrongful

birth and life lawsuits, finding the legislatures effort to prevent increased medical malpractice

insurance premiums as more important that allowing lawsuits based on sheer speculation. 113

When the state legislature bans wrongful birth and life lawsuits, other mechanisms are in place to

create incentives for proper prenatal care. The idea that removing the threat of civil liability will

increase negligence is a speculative and unproven argument .114 Medical boards will create a

109 See Bader , 732 N.E.2d at 1212.110 See Harbeson , 98 Wash. 2d at 491, citing Rogers, Wrongful Life and Wrongful Birth: Medical malpractice in

genetic counseling and prenatal testing , 33 S.C. L. Rev. 713, 757 (1982).111 Perry, supra note 108 at 359.112 Id. at 361.113 Id. 114 See Edmonds v. Western Pa. Hosp. Radiology Assocs , 607 A.2d 1083, 1088 (Pa. Super. Ct. 1992) ([W]e would

be engaging in speculation were we to assume that this extinguishment of liability encourages such improper

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disincentive for medical malpractice. 115 The state medical board has the power to revoke a

medical license for malpractice; 116 also, professional pride and the value of peer review and

esteem together with the desire to avoid negative publicity deter medical negligence without tort

liability. 117

In states that ban wrongful birth causes of action, a claim for medical malpractice still

exists. For example, if the doctors negligence caused a physical injury to the fetus or mother,

the parents can still sue the doctor. 118 States banning both causes of action can still allow causes

of action for intentional misrepresentation on the part of the doctor. For example, if a doctor

knew that the fetus had a genetic condition and intentionally concealed this information from the parent, the parent could still sue the doctor .119

3. The allowance of wrongful birth and life causes of action negativelyimpact the family unit and children.

The allowance of wrongful birth and life suits could lead to the allowance of suits where

children with disabilities sue their parents for choosing not to abort them 120 because It would be

difficult to justify the resulting discrimination which would hold a stranger liable, but not a

parent. 121 Courts should not set a precedent that could allow children to sue their parents when

behavior. Thus, it is clear that the issue of the challenged provision's effect is open to question. Since all doubtsrelating to the constitutionality of a statutory provision must be resolved in its favor, we must presume that 42Pa.C.S. 8305(a) does not encourage physicians to engage in the negligent conduct at issue.).115 See Flickinger v. Wanczyk , 843 F.Supp. 32, 36 (E.D.Pa. 1994).116 See Kimberly D. Wilcoxon, Comment, Statutory Remedies for Judicial Torts: The Need for Wrongful Birth

Legislation , 9 U. CIN. L. REV. 1023, note 2, at 1024-25 (2001).117 See Henson Moore & Jeffrey O'Connell, Foreclosing Medical Malpractice Claims by Prompt Tender of

Economic Loss , 44 La. L. Rev. 1267, 1286 (1984).118 See Kelly E. Rhinehart, The Debate Over Wrongful Birth and Wrongful Life , 26 Law & Psychol. Rev. 141, 146(2002).119 See 42 Pa. Cons. Stat. 8305(a) (1998) (Nothing contained in this subsection shall be construed to provide adefense against any proceeding charging a health care practitioner with intentional misrepresentation . . . .).120 See G. Tedeschi, On Tort Liability for Wrongful Life , 1 Isr. L. Rev. 513, 517-18 (1966).121 Curlender , 106 Cal.App.3d at 829 (no public policy would prevent children from suing their parents in awrongful life suit); see also Donna J. Long, A Cause of Action for Wrongful Life: Pennsylvania's Judicial and

Legislative Reaction , 26 Duq. L. Rev. 967, 992-93 (1988) (expresses worry that allowing wrongful life causes of action will result in the imposition of a duty on parents to terminate less-than-perfect fetuses).

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a supposed aim of the court is protection of the family unit, as is evident in the laws reluctance

to allow spouses to sue each other in tort. 122 Instead, states should follow Californias lead and

pass laws that prohibit a child from suing her parent .123 An affirmative duty on women to abort

disabled fetuses would violate Supreme Court precedence, 124 but laws similar to that of

California would prevent courts from infringing on a parents choice to procreate. 125

A significant public policy concern in allowing wrongful birth and life lawsuits involves

the damage that can be caused to the plaintiff who brings the action and asserts they would have

aborted the child while the child is alive. As the District of Columbia Court stated in a wrongful

conception case, the damage to the child will be significant; that being an unwanted or emotional bastard, who will someday learn that its parents did not want it, and, in fact, went to

court to force someone else to pay for its raising, will harm the child. 126 Further, even though

the child will have independent evidence of his parents love, there will always be contradictory

evidence (and a court transcript) to prove that the childs parents convinced a jury that the child

was unwanted and would have been aborted if the opportunity presented itself. 127

III. A possible solution to the wrongful birth predicament.

In his law review article, Ronan Perry argues that instead of allowing wrongful birth and

life causes of action, with all of their inherent problems, courts should allow children to bring

suits against medical professionals for breach of a contract for the benefit of the child, a third

party to the contract. 128 The child asserts, first, that the medical professional promised the parent

122

See Perry, supra note 113 at 349.123 Cal.Civ.Code.Ann 43.6 (West 2007).124 See Alan J. Belsky, The Implications of Suits in Wrongful Life Brought by Children Against Their Parents , 31Drake L. Rev. 411, 415-25, 432 (1981-1982).125 Id. (imposing liability on the parents for bringing a disabled child into the world interferes with their discretionregarding parenthood and, at the very least, violates their right to privacy.).126 See Flowers v. District of Columbia , 478 A.2d 1073, 1077 n.5 (D.C. 1987).127 Bernstein, supra note 99, at 320.128 See Perry, supra note 122 at 384.

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that the mother would give birth to a child without a specific disability in exchange for

consideration and, second, that this warranty was breached. Here the child is the third-party

beneficiary of the contract between the medical professional and the parent.

In this model, the consultant (medical professional) must guarantee the accuracy of the

genetic testing for a specific disability or disease in exchange for consideration paid by the

parents. The contract between the parents and the medical professional must be for the benefit of

the future child. 129 The breach is not based on the failure of the medical professional to exercisereasonable care, which requires proof of harm and a problematic ruling that the childs life is

injured injurious. Instead, in the proposed solution, a liable physician breaches the contractwhen her assurance of the accuracy of the representation concerning the potential child's state of

health, which was ultimately found erroneous. 130 This model avoids the problem of asking

juries to compare non-existence and existence. The proposal asks juries to apply contract law

instead. 131

The proposed solution appears to have the same practical effects as wrongful birth and

life lawsuits because parents are compensated in both, but the proposed solution is more

desirable because it fits well within existing contract theory; juries would have to decide whether

one of the parties breached an express contract which, in many cases, would be a less speculative

decision than decisions made by the jury in wrongful birth and life suits. It also prevents parents

from having to prove that they would have aborted their child. With the proposed solution,

parents can recover even if they would not have aborted the disabled fetus because the only

claim is that the doctor failed to meet his warranty of detecting a specific condition.

IV. Conclusion

129 Id . at 385.130 Id. at 386.131 Id. at 398.

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This paper has demonstrated that wrongful birth and life causes of action sharply divide

jurisdictions and are a cause for much debate. The first part of the paper discussed the

development and background behind the causes of action, the second part presented arguments

against the allowance of both causes of action for two reasons. First, the actions do not fit within

the traditional tort framework and courts must reject them. Second, allowance of wrongful birth

causes of action violates the Americans with Disabilities Act and probably violates the

Constitution. These two arguments are enough to justify the banning of the causes of action and

are supplemented by the third part of the paper, which sets out public policy reasons against

allowing the tort. The final section of the paper proposes an alternate way of dealing with theissues surrounding wrongful birth. Because the causes of actions are neither legal nor justifiable

from a public policy standpoint, courts should dismiss them, legislatures should ban them and

plaintiffs should bring the actions in a more logical way.

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Genetics Taylor Jones Final