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 ?
lost right to abort through wrongful birth, but wrongful life asserts
18) "Las primeras acciones de responsabilidad relacionadas con la vida surgen en Estados Unidos hacia los anos sesenta; de hecho, el primer caso que se plantea de wrongful birth y wrongful life es de 1967 (Gleitman vs.
Flicker for her insights on successful wrongful birth actions.
163) Again, like claims of wrongful birth, the parents allege that, but for the negligently delivered healthcare, the child never would have been conceived and/or born.
Wrongful birth cases usually involve the unwanted birth
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.
Another disadvantage is that the whole project leaves the impression that the author makes sometimes simulated efforts to sharply differentiate the Israeli from the German position, for example in its discussion of the legal treatment of wrongful life and wrongful birth.
JP: That although we tend to be quick to judge people who initiate wrongful birth suits, not a single parent I interviewed truly wished that his/her child had never been born.
2) However, perhaps nowhere have tort actions for negligence raised more legal and logical problems than in the area of wrongful birth and wrongful life suits.
While wrongful death is a well-known concept, wrongful birth due to poor prenatal care or failed sterilization is analyzed here in a review of relevant cases, including those involving liability for a resultant unwanted or disabled child.
Having laid down a theoretical framework for analysis of duty problems, the article then proceeds to examine Sullivan and the High Court's use of policy in two significant cases, one on the wrongful conception action (6) and the other on the wrongful birth action.