Wrongful Birth and Adoption
posted by Gerard Magliocca
Wrongful birth cases present many challenging issues. Since I talk about this doctrine every time that I teach Torts, I was surprised to realize recently that I have never posted about this. For those who do not know, “wrongful birth” refers to a cause of action brought because of an unwanted pregnancy caused by medical malpractice or defective birth control. Suppose that a vasectomy is done negligently, or a woman gets the wrong pills, etc. The doctor, pharmacist, or pharmaceutical company could be liable. The really difficult question is–for how much?
One possibility is that the wrongdoer is liable for the cost of an abortion. If you don’t get one, the argument goes, then you are not acting reasonably to mitigate damages. No state takes this view. It is easy to see why. That would be pressure to have an abortion, which would be intolerable for many people.
Another option, which is the law in some states, is that any liability extends for only the costs of the pregnancy. (By costs, I am including emotional distress and other intangible damages.) One thought here is that adoption is what you must do to mitigate damages. Or you could say that a child goes from “unwanted” to “wanted” once the parents accept responsibility for raising the baby, which breaks the chain of causation. The adoption question is interesting because I don’t know of a religious objection to giving up a child for adoption, yet people feel uncomfortable with the idea of making adoption into a legal duty.
A third alternative, also the law in some states, is that liability extends beyond birth to reasonable child-rearing expenses until the kid turns 18. This would say, in effect, that adoption is not necessary mitigation and that rearing a child does not break the chain. Estimating the damages in such a case, though, is really speculative. Moreover, there are benefits to raising a child. How do you calculate that?
Finally, you could say something like the following, which is also done in some states: ”You only get damages after birth only if the child suffers from some disability that imposes a special financial burden on the parents.” Calculating the damages is still tricky, but this does acknowledge that this situation is materially different from the usual one.
There is no clear answer to this dilemma, though I’d be curious to hear what people think about the different approaches that states take.
UPDATE: In the original post, I said “wrongful life” when I meant “wrongful birth.” Fixed now.