Better Off Dead?

In 2002, a plaintiff’s attorney might get to George quicker than an angel. That’s what I gather, anyway, from a recent edition of a local legal newspaper. In it there is an advertisement by a law firm trumpeting the multimillion-dollar settlements it has won for people willing to claim they wish that they, or their children, had never been born. Those lawyers are getting rich”and they want you to get rich too”on two of America’s most outrageous legal absurdities, “wrongful birth” and “wrongful life” claims.

Essentially, wrongful birth and wrongful life claims are variations on the standard medical malpractice claim: plaintiffs seek damages from doctors and hospitals for negligent acts committed by medical professionals. They involve a macabre twist of logic, however, that sets them apart. Wrongful birth and life plaintiffs must claim that if only the physician (or ultrasound technician, or geneticist) had given the parents of an unborn child the proper notice about their child’s birth defects, the parents would have had an abortion in order to avoid the anguish and expense the child has caused since his birth. In other words, but for the negligence of the doctor the child would never have been born, and because the child has been born, the parents and the child are worse off emotionally and financially. Wrongful birth suits are brought by the parents of disabled children to claim damages for themselves; wrongful life suits are brought by parents on behalf of their handicapped children for the “damages” the child has suffered by being brought into the world.

It is important to note that in neither cause of action does a plaintiff claim that the medical professional actually caused the child’s birth defects. The defects occur either naturally or by some other cause. The professional is negligent only insofar as he misreads an ultrasound or miscommunicates the chances of a genetic defect due to disease or genetic predisposition. The birth defects that can give rise to such suits range from the fatal (such as anencephaly”the brain growing outside of the skull) to the manageable (such as deafness, blindness, Down’s syndrome, and hemophilia).

Wrongful birth and life suits have been in the news recently for the minor uproar they have caused in France. The French high court recognized wrongful birth and wrongful life as causes of action for the first time in November 2001. (See FT, Public Square, January 2002.) In January 2002, the French legislature passed a bill overturning that decision with respect to wrongful life suits. As the issue turns to the French Senate, French pro-lifers continue to lobby for the outlaw of wrongful birth suits as well.

Sadly, such lawsuits do not make headlines in America anymore, because in many states they have been with us for years. Not long after the Roe v. Wade decision in 1973, state courts began recognizing wrongful birth and life causes of action. The Supreme Court of my home state of New Jersey led the way.

Before Roe, the New Jersey Supreme Court practically scoffed at the notion of either type of lawsuit. In 1967, it rejected a claim with language pro-life lawyers could find only in their dreams today:

The right to life is inalienable in our society. A court cannot say what defects should prevent an embryo from being allowed life such that denial of the opportunity to terminate the existence of a defective child in embryo can support a cause of action . . . . A child need not be perfect to have a worthwhile life . . . . The sanctity of the single human life is the decisive factor in this suit in tort. Eugenic considerations are not controlling. We are not talking here about the breeding of prize cattle. It may have been easier for the mother and less expensive for the father to have terminated the life of their child while he was an embryo, but these alleged detriments cannot stand against the preciousness of the single human life to support a remedy in tort.

The Roe opinion completely reshaped legal views of the unborn, however, and soon thereafter the New Jersey Supremes were singing a different tune. In 1979, that court became the first to recognize the tort of wrongful birth. In light of Roe, the Court said that eugenic considerations in fact did control decisions regarding the birth of a child.

Public policy now supports, rather than militates against, the proposition that [the plaintiff] not be impermissibly denied a meaningful opportunity to make that decision [to abort] . . . . [We will not] immunize from liability those in the medical field providing inadequate guidance to persons who would choose to exercise their constitutional right to abort fetuses which, if born, would suffer from genetic defects.

In 1984, the same court recognized wrongful life suits as well. At last count, twenty-seven states recognize the tort of wrongful birth, while three recognize wrongful life causes of action.

A first-year law student can count the ways in which these suits violate the tenets of traditional tort law, let alone common sense. For example, in traditional tort law, in order for one to be liable for the injuries of another, one’s actions must actually cause the injuries. But in wrongful birth and life suits, the defendants have not caused any harm to the unborn child. The plaintiffs argue that the child’s life itself is an injury, nonexistence being preferable to the child’s challenged existence.

Such claims fly in the face of another basic element of tort law: a plaintiff must be able to claim damages for the injury incurred. In tort, courts are charged with making the plaintiff whole, or putting the plaintiff in the same position he would have been in had the injury not occurred. But how can a court compare the value of a life with a handicap to the alternative”never having lived at all? And which handicaps make life not worth living? If blindness and deafness make life unbearable, does blindness in one eye, or deafness in one ear? Does being born with just plain bad eyesight or hearing entitle one to an award? How serious must one’s mental retardation be to qualify for compensation? Must it be “severe,” or can a person of mere lower-than-average intelligence recover damages?

Those are dismal questions indeed. To avoid them, our only position must be that no life with any of those naturally occurring maladies should count as an “injury.” Bishop Fulton J. Sheen had it right: life”every life”is worth living.

There is also the small point of a plaintiff’s obligation under the law to mitigate his damages. In other words, once an injury occurs, the injured must take all reasonable steps to prevent the injury from getting any worse. If indeed a handicapped child is a net drain such that her parents are due compensation for her very existence, then why not require them to give the child away? Or, if the child is generally a net drain on society, why not kill her? Chilling and perverse as that “logic” might be, can anyone predict with confidence that that will not be an option in, say, Oregon in the next twenty years?

Not that even casual court watchers could have been surprised by the recognition of these suits. As should be obvious by now from various contexts, our courts rarely allow high metaphysical, logical, or even legal hurdles to impede them from the “progress” they seek to make. In New Jersey, the Supreme Court simply emoted its way over and around the traditional obstacles to recognizing wrongful birth and life claims. “Law is more than an exercise in logic,” it wrote, “and logical analysis, although essential to a system of ordered justice, should not become an instrument of injustice.” The Court saw it as its job “to respond to the call of the living for help in bearing the burden of their affliction.” Hundreds of years of legal precedent to the contrary were out the window.

Helping the disabled bear the burden of their affliction is a praiseworthy goal, but it’s also something our elected officials do fairly well. At nearly every level of government, legislative bodies have passed laws that make clear that the disabled among us are to be loved, respected, and assisted. Federal, state, and local programs provide financial, medical, educational, and vocational assistance to children and adults with disabilities as well as their families. Discrimination on the basis of handicaps is outlawed in the workplace and the housing market, and accommodations for the disabled are required of public and private employers and transportation providers. Legislators scramble for the credit whenever they win victories for the physically or mentally disabled, and usually for good reason. Those programs represent the most basic threads of our social safety net and should remain a high priority.

The advantages of programs instituted by elected representatives are many. Chief among them are that such statutes are generally applicable and provide immediate assistance to families in crisis. In contrast, trying to help families bear the burden of their children’s disability through litigation is a prolonged, piecemeal approach that offers potentially rich monetary rewards only to those few parents who are aggressive enough to file suit and who are fortunate enough to win compensation. I see no good reason for that: wrongful birth and life plaintiffs have no greater claim to assistance than the rest of the families that must rear disabled children.

In stark contrast to our stated legislative policy of protecting and cherishing the disabled, wrongful birth and life suits marginalize and stigmatize them. Courts have concluded that it is permissible and right to proclaim that, as a matter of law, some handicapped individuals would be better off dead. Worse, they put parents in the position of testifying to that effect in open court about their own children, who someday will doubtless wonder what could have driven their parents to make such cruel statements. The Roe logic has sunk us that much further into a culture of death. Rank disregard for the unborn has devolved into open contempt for the most vulnerable and innocent of the born.

The harm the courts do in this area extends beyond the creation of intangible stigma or theoretical harms. Wrongful birth and life suits create negative incentives that can affect the behavior of medical professionals. The lawsuits encourage more, and more thorough, prenatal genetic testing. If an ultrasound or other genetic test indicates that there might be the slightest problem with an unborn child, it is in the medical professional’s interest to point out the defect, or potential defect, and advocate abortion as a course of “treatment” to the parents. From the doctor’s perspective, why risk a lawsuit over a child who might be born with a defect? In a close case, better to suggest an abortion and reduce one’s potential liability.

Further, an increased emphasis on genetic screening places an increased social pressure to abort on parents of the disabled unborn. If they do not abort, the parents risk being blamed by neighbors for subjecting their child to a malady that was so “avoidable.” For proof of such pressure, see the recent and rapid decline in the birth rate of Down’s Syndrome children during the last decade. As the human genome continues to be mapped and the reality of human cloning sinks in, these lawsuits represent a less visible, but still very real, eugenic influence on society.

Those incentives are obviously abhorrent to the usual defenders of life in the womb, whose religious backgrounds help them recognize in each human being an imperfect but loved member of God’s family. They should also be unwelcomed by at least some on the opposite end of the political and ideological spectrum. Some feminist scholars, for example, have pointed out that increased prenatal screening may yield information that an uncommitted biological father could use as a pretext to abandon child and mother.

No one should denigrate the pain and anger that parents feel when they learn that their child is disabled. It is hardly unexpected for them to lash out and seek someone to blame for their anguish and their child’s challenges. In twenty-first-century America, those emotions often move people to call a lawyer and sue anyone who might be blamed for their problem. They do so regardless of its real cause and even though there’s often no one, at least no human being, to blame.

There’s an old saying that goes, “You can’t lend a hand if you’re pointing a finger.” The desire for parents of a disabled newborn to point a finger at the closest or most convenient person as the cause of their pain is understandable. When that happens, it’s time for society to lend the parents the hand they need, whether through public support or formal or informal private assistance, rather than point a finger with them by condoning wrongful birth and life suits. Only by doing that can we affirm the child’s life, salve the parents’ wounds, and recognize the obligations of our common imperfection. Recommitting ourselves to solidarity in those ways reclaims a small part of our culture for the culture of life.

The good news is that wrongful birth and life suits are fairly easy to ban legislatively in the states. It’s not hard to imagine a powerful coalition consisting of advocacy groups for the disabled, pro-lifers, medical professionals, and tort reformers pushing through the simple and straightforward laws that outlaw these causes of action. Eight states have already banned one or both; Michigan barred both just last year. One hopes that more legislatures will follow their lead, because the world could use fewer plaintiffs’ attorneys and more guardian angels.

Jay Webber, a new contributor, is an attorney living in northern New Jersey.