Wrongful Birth and Adoption

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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10 Responses

  1. m strasser says:

    Wrongful life is recognized in very few states, whereas wrongful birth is recognized in many more. The former is an action on behalf of the child where she in effect says that she would have been better off never having lived. The latter is brought on behalf of the parents where they say that they have been harmed by the birth. States have been reluctant to say that life is not worth living, even when the child has severe difficulties.
    The differing approaches on damages (limited to costs associated with pregnancy) versus special damages arising after the birth sometimes have been reflected by talking about different causes of action–wrongful birth (where child has severe difficulties) versus wrongful pregnancy (where the child does not).
    That said, the states are not uniform in how to characterize the causes of action and the permissible damages.

  2. Gerard Magliocca says:

    Oops! You’re right. I will fix that.

  3. Jimbino says:

    The solution to the dilemma is to force parties to negotiate liquidated damages before engaging in the birth/contraception/abortion process, if possible.

    A woman who didn’t object to abortion would get cheaper care; one who did object would just have to negotiate around a much higher charge for, say, getting her tubes tied.

    Tort law demands that the party who suffers an injury accept the responsibility to mitigate damages: a woman who gets pregnant after a failed attempt to get her tubes tied should abort, recovering only the costs of the failed procedure and the subsequent abortion; tough titty if she has religious objections. Her choice is to abort or endure the birth, followed by child-rearing or adoption.

    The rest of us have the right to expect that injuries be mitigated and that we be free of subsidies for the religion of others. If that were not the case, we might well vote to prohibit religion, compel religious folks to act responsibly, or force them to be sterilized—none of which options are palatable.

  4. Kent says:

    I think option two is the most practical. I don’t see it as imposing a legal duty to put the child up for adoption but only a legal duty to find someone willing to take on the responsibility which could, as you indicated, be the parent accepting the responsibility and changing the child from “unwanted” to “wanted” or could be adoption. The stickiest part of option two, however, is that there is probably considerable emotional stress associated with giving a child up for adoption which would go uncompensated.

    Option 3 most likely provides a windfall to the parents, excepting wicked-stepmother types.

  5. Sykes Five says:

    Isn’t the historical majority view that there are no damages because of the “overriding benefit” of having a child? Even courts that have awarded child-rearing damages have sometimes offset this by the calculating the benefit conferred by the child.

    You can also find some decisions that take into account the effect on the mother’s health if she knew that the pregnancy could exacerbate some existing condition and the failed sterilization was undertaken to protect her health.

  6. Ken Rhodes says:

    This whole question is puzzling to me because a different set of circumstances with the identical choices and the identical spectrum of outcomes is “standard operating procedure” in every state.

    Andy and Amy got drunk at a fraternity party. They did what college kids often do under those circumstances, and they got the not surprising result–the rabbit died.

    Who is responsible for costs, and to what extent? If Amy decides to abort, is Andy responsible for anything? Anything over and above the abortion?

    If Amy decides to carry to term and then give up for adoption? What then?

    And if Amy decides to give birth and raise her child, what is Andy responsible for?

  7. jdgalt says:

    I would lean strongly toward treating the unwanted birth like any other action. Thus if the plaintiff does not have an abortion or at least give the baby up for adoption, the damages would still cover the birth process but end then.

    In Andy and Amy’s case I would have Andy’s obligation end the same way. After all, most sex in the modern world is for pleasure, and if Amy wanted child support there is a well established mechanism (marriage) for her to get his agreement beforehand, and she should do so (in other words, the “spirit” of the Statute of Frauds ought to apply here).

    This latter is the important case, because the present child support enforcement system not only ruins men’s lives, it has also resulted in 30% of US births now being out of wedlock. If the system properly held the woman responsible for the cost of her choices, most of those kids would either not be born or would be adopted by parents who want them and can afford them.

    I’m surprised you didn’t mention the third case of “wrongful birth,” though, and that’s the one that came up in the recent Pennsylvania case: a botched abortion that results in a live birth, often with injuries to the baby. For that I would want to hold the doctor or his insurer liable, including child support since the accident probably makes any choice except keeping the child impossible.

  8. jdgalt says:

    oops – “like any other action” should read “like any other accident.”

  9. Malcolm says:

    In reply to Jimbino, I like to know what makes him think that only religious people object to abortion?
    In reply to Ken Rhodes, the law and custom has always required that, when a child is conceived, the father bears financial responsibility for its support. Both Andy and Amy have behaved irresponsibly. It is time they behaved responsibly.
    In reply to the question of “wrongful birth”, I have no pat answer, but I think the minimum would be that the cost of the operation should be refunded. After all, if you pay for a sterilization operation, you expect it to work – even if, after it fails, you are delighted with the new offspring.

  10. jdgalt says:

    Perhaps only religious people object to abortion because the notion that a newly fertilized egg is intelligent enough to be called morally human doesn’t pass the giggle test.