Wrongful Birth and Wrongful Life

August 24, 2015

by Bonnie Steinbock, Bioethics Program Faculty

Yesenia Pacheco, a mother of two from Seattle, Washington, decided that her family was complete, and that she did not want any more children. To ensure that she would not have an unwanted pregnancy, she sought medical advice from NeighborCare Health, a federally funded health clinic, about her birth control options. The clinic gave her an injection of Depo-Provera, an extremely reliable long-acting contraceptive method, which must be repeated every three months.

Ms. Pacheco duly scheduled subsequent injections at three-month intervals. But during one of those visits, she was not injected with Depo-Provera, but instead was given a flu shot.  Apparently, the clinic did not record in Ms. Pacheco’s chart that she was supposed to be given a Depo-Provera shot, nor did they get her informed consent for a flu shot, minimal requirements for responsible medical practice. Ms. Pacheco only learned what had occurred when she attempted to schedule her next Depo-Provera injection.  By that time, she was two and half months pregnant.

The clinic informed her that she would not have to have the child, that it would provide her with an abortion at no cost. Ms. Pacheco refused, because of religious objections to abortion. She gave birth to a daughter, Sandra, now aged 3, who has a genetic brain disorder, known as polymicrogyria (PMG). The condition produces symptoms that range from mild to severe, depending on how much of the brain is affected. Sandra’s motor and language skills, attention span, and cognitive functions have been impaired. Special education and physical therapy can help her development, but her deficits are predicted to continue into adulthood. Her parents are suing to recover these unexpected costs, as well as compensation for their emotional distress, in a wrongful birth suit. They are also suing on behalf of Sandra in a wrongful life suit.

Washington law distinguishes between wrongful pregnancy, wrongful birth, and wrongful life. The claim in a wrongful pregnancy suit is that the negligence of the physician caused an unwanted pregnancy. The plaintiff parents may recover damages for the cost of raising the child, as well as damages for emotional distress. Wrongful birth suits are used when the child has serious impairments, resulting in extraordinary medical and other expenses for the parents, who seek damages for these expenses, as well as emotional harm. Wrongful life suits, by contrast, are brought on behalf of the infant plaintiff. They claim that the child herself has been harmed and wronged by being born birth with serious disabilities, and she should be able to recover damages for her special medical and educational needs.

The distinction between wrongful pregnancy and wrongful birth suits, on the one hand, and wrongful life suits is significant. Wrongful pregnancy and wrongful birth suits fall into traditional tort law. They allege that the negligence of a physician, or other health care provider, has resulted in an unwanted birth, causing financial and emotional harm to the plaintiff. In the Pacheco case, the alleged negligence was giving a flu shot to someone who was supposed to receive contraception, resulting in her having an unwanted pregnancy and giving birth to a child with significant medical and educational needs. Had the clinic not been negligent, Ms. Pacheco would not have become pregnant, and would not have the financial burdens -- burdens the family is ill-equipped to meet -- associated with the care of a disabled child. It is reasonable, fair, and within the scope of tort law to require the negligent party (assuming negligence is proved) responsible for those burdens to bear the costs incurred.

It is also reasonable and fair to ask physicians to pay damages when their negligence causes an infant to be born in a harmful condition. This is the case in traditional negligence lawsuits brought on behalf of an infant plaintiff. The claim in such cases is the child would have been born “healthy and whole,” had the physicians not been negligent. This is where wrongful life suits diverge from traditional tort cases. Giving Ms. Pacheco a flu shot did not cause Sandra’s genetic condition. If the clinic had acted properly, Sandra would not have been born free of a brain defect. Rather, she would not have been born at all. Wrongful life suits suggest that life with a disability is a wrong to the disabled person, who would have been better off never having been born at all. Most states courts to consider such suits have dismissed them, motivated both by the difficulties with fitting such claims into traditional tort law and by the offensiveness of the idea that disabled people would be better off not existing.

Only New Jersey, California and Washington recognize the tort of wrongful life. Courts there have argued that it would be a serious injustice if the child were to do without the medical and educational treatment she needs. Moreover, even though the negligent providers admittedly did not cause the child’s impaired condition, their negligence did result in the birth of a child with expensive medical needs. Requiring the negligent party to pay those expenses is fairer than having those needs go unmet or saddling the parents with this burden.

It may be argued that this last point does not justify the recognition of wrongful life suits, but rather provide the rationale for wrongful birth suits, which compensate the parents for the child’s medical and educational expenses. Restricting lawsuits to wrongful birth has the advantage of avoiding the moral and legal conundrums associated with wrongful life suits. The problem is that wrongful birth suits cover only expenses incurred until the child turns 18, whereas wrongful life suits are not so restricted. However, this is less of an argument in favor of wrongful life than it is an argument for allowing recovery after age 18 in wrongful birth suits. While there might be an argument for limiting recovery in wrongful pregnancy suits to age 18, on the assumption that children over 18 are financially independent (a dubious assumption in today’s world), this has no application to wrongful birth suits, which are only brought when the child has extraordinary medical and educational expenses. Many of these children will need medical and custodial care for the rest of their lives. The burden for such care typically falls on their parents. In such cases it seems arbitrary to limit damages to the child’s minority.

Assuming that the clinic acknowledges negligence, it might be argued that the result for which it can be fairly held responsible is the unwanted pregnancy. Its offer of a free abortion would take care of that; why should it be liable for the medical and education expenses of the resulting child? Such an argument assumes that Ms. Pacheco ought to have accepted the offer of an abortion, despite her moral and religious objections. That is unacceptable. The constitutional right of women to choose abortion should never be interpreted as an obligation to have an abortion, nor should this right restrict victims of physician negligence from recovering damages to which they are entitled.

One final point needs to be made. If the argument in favor of wrongful life (or expanded wrongful birth) is to ensure that disabled children get the medical and education help they need, what about those children whose disabilities are not the result of anyone’s negligence? Shouldn’t their needs be met as well? Of course they should, and Obamacare is a step in the right direction. At present, however, wrongful life suits should be recognized as the only recourse for some children to get the medical care and services they need.

Author's note: I'd like to thank Pacheco's attorney Steve Alvarez for graciously giving me some of his time to discuss the case, and Sam Steinbock-Pratt for legal research and advice.

Tags:Bonnie SteinbockFaculty

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