What’s Wrong with the World

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Turning outrage into action

By this time I assume all my readers have been rightly horrified by the story of Ariel and Deborah Levy in Oregon who won a so-called "wrongful birth" lawsuit because the search and destroy mission against their Down Syndrome daughter failed when she was unborn and now, darn it, they have to raise her. (Minerva and Giubilini have a solution for that, by the way...)

I will take as read the utter evil of such lawsuits and of the premises that underlie them.

Let's turn this into action. This story from last month lists the following states as prohibiting such suits:

Idaho, Indiana, Michigan, Minnesota, Missouri, North Dakota, South Dakota, Pennsylvania, and Utah.

According to the story, Arizona is considering similar legislation.

This article
, from 2008, says that twelve states prohibit such suits. The states listed there are

Idaho, Utah, South Dakota, Minnesota, Oklahoma, Arkansas, Missouri, Kentucky, Michigan, Pennsylvania, North Carolina, and Georgia.

Alert readers will notice that the lists are not the same. I don't know what this means. One might conjecture that Indiana and North Dakota have added such laws since 2008, but what about Oklahoma, Arkansas, North Carolina, Kentucky, and Georgia? Have they repealed them? Or did the author of the 2012 article just miss them? I hope so. That would mean the grand total is actually fourteen states that prohibit these obscene lawsuits. I decided to get this post up right away rather than doing more research to check into the states that are different in the two lists. If readers want to add info. that will be most welcome. Perhaps part of the answer lies here:

Gary E. Marchant, an Arizona State University law professor who specializes in genetics laws, said nine states bar both “wrongful life” and “wrongful birth” lawsuits. There have been about a hundred such lawsuits nationwide, including a few in Arizona, said Marchant, who recently did a study on the subject.
It may be that the distinction between wrongful birth and wrongful life suits somehow accounts for the discrepancies in the two lists.

The second link above states that twenty-eight states allow such suits. That could mean either that such suits are recognized in statutory law or that they are not banned in statutory law and have been allowed in the courts. Probably some of each. No list is given of the twenty-eight states.

So here's an assignment: If you live in Arizona, get a-goin'. Contact your legislators to support the bill introduced by Sen. Nancy Barto. Naturally, the feminists are agin' it:

Sen. Linda Lopez, a Tucson Democrat, said she doesn’t understand why the bill is needed, and feels it infringes on a woman’s right to make decisions about her health.

Um-huh. Because it's obviously a matter of women's rights not simply to be able to murder your unborn child if he isn't perfect but also to sue your doctor if he fails to detect the presence of an imperfect child so that you can kill it before it's born.

(By the way, the assumption in prenatal testing is already that false positives are better than false negatives. Wrongful birth lawsuits just push that assumption more stridently.)

If you live in a state about which there is any question, find out and, if such lawsuits are permitted either tacitly or explicitly in your state, suggest to your state Right to Life organization that it urge pro-life lawmakers to introduce relevant legislation, pronto. This is timely. People are upset about this lawsuit which said that the Levys' daughter should have been killed before birth; now is the time to introduce that legislation.

Comments (9)

Certainly such suits were not permitted at common law. The torts they reflect simply do not exist in the laws of most states, or in the jurisprudential history of Anglo-American law. So there are not lots of people running around getting paydays on these theories, even in states that do not explicitly prohibit them.

The discrepancy may result, as you suggest, from poor research: some states have statutes, some have Supreme Court opinions, but many have nothing on the topic.

Also, there's some overlap in terminology. Some states will permit the unwise, but certainly less barbaric, form of "wrongful birth" claim against a physician who commits medical negligence while performing a sterilization operation. These are really just med-mal cases, not "wrongful birth" actions, because the claim is not "I would have had an abortion" and plaintiffs are generally not permitted to recover the costs of raising the child, only of the pregnancy. See, e.g., Smith v. Gore, 728 S.W.2d 738 (Tenn. 1987).

There are also some cases denominated "wrongful birth" where A causes some wrongful injury to B such that, unbeknownst to B, the child she later conceives is born with some defect. The claim there is "I would not have conceived a child if I had known" or "but for A's act, my child would be healthy." Again, not really an "I would have had an abortion" claim. See Estate of Amos v. Vanderbilt, 62 S.W.3d 133 (Tenn. 2001).

It's really very few states that will permit the form of judicial barbarism that was on display in the Oregon case. That doesn't mean statutes aren't the best way to prevent that sort of thing, but this has not yet become an enormous problem.

Thanks for the info, Lydia. I'll see what I can find out here.

There are also some cases denominated "wrongful birth" where A causes some wrongful injury to B such that, unbeknownst to B, the child she later conceives is born with some defect.

Those sound like straightforward malpractice cases. I'm surprised that they are called "wrongful birth."

I assume there is _some_ meaning to the claim that twenty-eight states permit wrongful birth suits. After all, twenty-eight plus twelve is only forty, so this isn't just dividing up the entire United States in some rough and ready fashion. There's got to be something particular about those twenty-eight states that the authors have in mind. I just don't know what it is.

The other thing I have read is that four states _expressly_ permit these sorts of suits. I would assume that means by statute.

I read about the Oregon verdict yesterday, and noted that the presiding judge was a woman.

While it cannot be assumed of course that the case would have been decided differently had the judge been a man, I think it demonstrates that it's more shocking when women display a deficit in human feeling. Having this lingering Victorian belief in the 'moral superiority' of most women reveals that I still inhabit the 19th century, I suppose.

I'll risk a generalisation - well it's a hunch really - that men are more likely to be opposed to abortion on principle than the 'average woman' who has been influenced by 'a woman's right to choose' propaganda.

It was a jury decision, though. Unless there's evidence that the judge instructed the jury in some strange way.

"Sen. Linda Lopez, a Tucson Democrat, said she doesn’t understand why the bill is needed, and feels it infringes on a woman’s right to make decisions about her health."

I suspect that Ms. Lopez is no problem with illegal immigration. So, for her, an illegal immigrant has a greater right to be in America than does a handicapped child has a right to exist in the world.

Yes, TA, and in particular in his mother's womb. The notion of the sacredness of the female physique has been turned on its head. Now the only thing that is sacred is a woman's right to be made un-pregnant.

being a new comer here, I had absolutely no idea about this. I was totally shocked when I saw this. How could the Jury decree that the birth was wrong? The lawsuit blamed the doctors for the wrongful birth of the child??? Unbelievable!

Because the doctors didn't detect that the child had Down Syndrome (though they actually did administer a test for that purpose, but it erred), so the parents didn't abort her.

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