Wrongful Birth


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Related to Wrongful Birth: Wrongful life

Wrongful Birth

A Medical Malpractice claim brought by the parents of a child born with birth defects, alleging that negligent treatment or advice deprived them of the opportunity to avoid conception or terminate the pregnancy.

A wrongful birth action is conceptually similar to a Wrongful Life action. In a wrongful birth action, parents seek damages for a child born with birth defects. The claim for damages is based on the cost to parents of raising an unexpectedly defective child. In a wrongful life action, the child seeks damages for being born with a birth defect rather than not being born.

A wrongful birth action was first recognized in Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975). The case involved an action by the parents of a child born with defects caused by the mother contracting rubella in her first month of pregnancy. The claim was that the defendant was negligent in failing to diagnose the rubella in the mother. The Texas Supreme Court allowed damages, but only for expenses reasonably necessary for the care and treatment of the child's impairment. The parents were not awarded any noneconomic damages such as damages for pain and suffering.

Most wrongful birth suits had little chance of succeeding before the decriminalization of Abortion by the U.S. Supreme Court in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), since the parents of a child with birth defects could not argue that they would have had an abortion had they known of the defect. In addition, some courts were reluctant to award damages, ruling that it was impossible to weigh the economic and emotional costs of raising an impaired child against the intangible joys of parenthood.

Since the mid-1970s, however, more than twenty states have recognized wrongful birth actions that enable parents to collect some or all of their Child Care expenses if they can prove Negligence. With improved genetic testing, medical providers can routinely determine early in pregnancy the presence of certain birth defects in the fetus. This imposes on medical providers the duty to order the correct tests and to properly diagnose the results.

Cross-references

Tort Law; Wrongful Pregnancy.

References in periodicals archive ?
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154) The reason that is usually given for this discrepancy is that the damages for wrongful birth are capable of being calculated.
is, a mother's claim of wrongful birth is based on her contention
But a spokesman for the Association of Personal Injury Lawyers said: "Cases of wrongful birth can involve children with severe disabilities who are confined to wheelchairs, unable to speak and need 24-hour care.
The team represents clients in a vast array of cases, from modest-value claims to multimillion-pound cases, including delayed diagnosis, wrongful birth and cerebral palsy cases.
Almost all courts have said that, unlike plaintiffs in wrongful birth and wrongful life cases, plaintiffs in wrongful pregnancy cases cannot recover the costs of raising unwanted but healthy children through the age of 18.
Should the parents file a claim, the lawsuit is confusingly termed wrongful birth (or better, wrongful pregnancy).
The jurisdictions in which wrongful birth suits are not recognized
In the same way in the 'wrongful life' cases, the reality of a case such as this is that the wrongful life action like that of wrongful birth 'are about money rather than love or family feelings.
But lawyers tell him and Charlotte they should sue their doctor - Charlotte's best friend - for wrongful birth instead.
But he gets more than he bargains for when lawyers tell him and Charlotte they should sue their doctor for wrongful birth instead.
The idea came from an article I'd read about a family suing for the wrongful birth of a child who was severely disabled," says Jodi, 42, from New York.