A. Definition

• Library: Elements of Civil Causes of Action (SCBar) (2021 Ed.)

A. Definition¹

Wrongful birth is an action by a parent brought against a physician for failure to inform the parents of the increased possibility of birth defects in the child.² A related action is wrongful life, an action brought by the child for the same failure.³ The South Carolina Supreme Court has specifically declined to recognize a common law cause of action for wrongful life brought by or on behalf of a child with a congenital defect.⁴

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Notes:

^[1] See generally, Haqq, Reconsidering Wrongful Birth, 95 Notre Dame L. Rev. Online 177 (2019); Hermanson, The Right Recovery for Wrongful Birth, 67 Drake L. Rev. 513 (2019); Billauer, The Sperminator as a Public Nuisance: Redressing Wrongful Life and Birth Claims in New Ways (A.K.A. New Tricks For Old Torts), 42 U. Ark. Little Rock L. Rev. 1 (2019); Perry, "It's A Wonderful Life," 93 Cornell L. Rev. 329 (2008); Hensel, The Disabling Impact of Wrongful Birth and Wrongful Life Actions, 40 Harv. C.R.-C.L. L. Rev. 141 (2005). There is also an action called "wrongful pregnancy" that is brought by a parent of a healthy but unplanned child, seeking damages for alleged negligence in performing a sterilization procedure or abortion or in dispensing or manufacturing a contraceptive prescription or device. Willis v. Wu, 362 S.C. 146, 153, 607 S.E.2d 63, 66 (S.C. 2004). See also Provencio v. Wenrich, 150 N.M. 457, 261 P.3d 1089 (2011) (wrongful conception is not separate tort but sounds in law of medical negligence). Dotson v. Bernstein, 207 P.3d 911 (Colo. App. 2009) is a case in which the plaintiff sought the services of the defendant to terminate her unwanted pregnancy. Nonetheless, she later gave birth to a healthy baby. She sued the defendant claiming negligent medical treatment causing injuries resulting from the pregnancy, delivery, and financial burden of raising an unplanned child. The court never used the phrase "wrongful conception." It concluded, however, that the complaint, taken as true, set forth a medical malpractice claim based on defendant's failure to prevent the birth of an unwanted child. The defendant conceded the complaint adequately alleged a duty to prevent the birth and, therefore, the plaintiff could seek recovery for foreseeable damages for harm from the failure to prevent the unwanted birth.

^[2] Phillips v. United States, 508 F. Supp. 544, 545, n. 1 (D.S.C. 1981). An action can also be brought against a defendant that negligently performs tests ordered by a physician. See, e.g.,...