Rights gone wrong: a case against wrongful life.

• Author: Schuster, W. Ryan
• Position: NOTES

TABLE OF CONTENTS INTRODUCTION I. DEVELOPMENT OF THE CAUSE OF ACTION II. INADEQUACY OF RECENT ATTEMPTS TO JUSTIFY RECOGNIZING WRONGFUL LIFE A. The Traditional Negligence Framework B. Contract-based Justifications C. Strict Liability Justifications III. INSURMOUNTABLE PROBLEMS WITH WRONGFUL LIFE A. Wrongful Life Claims Require Judicial Valuation of Individual Lives B. Roe v. Wade Forecloses Vindications of Rights Through Wrongful Life Claims IV. FAVORING COMPASSION OVER COURTS CONCLUSION INTRODUCTION

In Dostoevsky's The Idiot, Ippolit Terentyev, a terminally ill young man, muses on his illness and impending death: "I will die looking straight into the wellspring of force and life, and I will not want this life! If it had been in my power not to be born, I probably would not have accepted existence on such derisive conditions." (1) Can existence ever be such that nonexistence is preferable? If so, can the mere fact of a person's existence become a legally compensable injury? Wrongful life claims, a specific variety of medical malpractice claim, require courts to grapple with this exact question. In a wrongful life suit, a disabled child plaintiff--through her parents--sues a physician or genetic counselor who failed to diagnose the likelihood of disability such that the mother could have chosen to terminate the pregnancy. In American jurisprudence, courts have largely refused to recognize wrongful life; only four states allow recovery, and to a limited degree only based on a desire to address the plaintiff's medical needs. (2) The courts in the majority reason that allowing a child to sue alleging that she should never have been born would require courts to classify a person's very life as an injury and compute damages by comparing the values of a disabled existence and complete nonexistence. (3) The majority views these issues as highly personal, philosophical inquiries into the meaning of life, which lie beyond the realm of judicial competence; accordingly, the majority has avoided recognizing the cause of action. (4)

Regardless of the near-uniform consensus against recognizing wrongful life, the issue continues to cause controversy. On May 6, 2015, the Supreme Court of Pennsylvania heard a case challenging the state's statutory ban on the cause of action. (5) Within the past two years, various foreign courts have had to determine for the first time whether to recognize wrongful life as a cause of action. (6) Additionally, a recent trend in scholarship has emerged, arguing for broader recognition and availability of recovery for wrongful life claims, either by ignoring the uncomfortable issues courts have grappled with or by attempting to resolve them in favor of allowing recovery.

This Note examines this scholarly trend, hoping to clarify the issues surrounding wrongful life with which courts, at home and abroad, continue to struggle. This Note concludes that none of the proffered justifications for wrongful life provides a completely coherent account of the claims under existing legal frameworks. It then considers more far-reaching problems with recognizing wrongful life and concludes that wrongful life claims require impermissible judicial valuations of life and a conception of individual rights that, at the same time, depends upon and is foreclosed by Roe v. Wade. (7) Because the difficulty of wrongful life ultimately stems from the questions it raises about the meaning and value of human life, no satisfactory solution can ignore these philosophical questions. This Note therefore offers a philosophical explanation of, and tentative solution to, the wrongful life problem, which informs a practical proposal that seeks a nonjudicial means of helping children who suffer the sort of birth defects that give rise to wrongful life suits.

Part I will trace the development of the cause of action and outline the majority and minority rules within United States jurisdictions. Part II examines defenses of wrongful life based on traditional negligence, contract, and strict liability frameworks, and finds each inadequate for measuring damages and avoiding problems outlined by courts. Part III considers rights-based justifications of wrongful life and concludes that allowing the cause of action will require impermissible judicial valuations of individuals, and that rights-based arguments require a conception of personhood that contradicts Roe v. Wade. Lastly, the conclusion presents a tentative solution, based on birth injury compensation programs in Florida and Virginia, that removes wrongful life plaintiffs from the courts entirely while still addressing their medical needs.

1. DEVELOPMENT OF THE CAUSE OF ACTION

   The first use of the term "wrongful life" occurred in Zepeda v. Zepeda, in which an Illinois appellate court refused to create a new cause of action allowing an illegitimate child to sue his father for damages resulting from his status as a bastard. (8) Several years later, the seminal New Jersey case Gleitman v. Cosgrove extended the wrongful life concept to its now familiar disability context. (9) In Gleitman, the plaintiffs mother had contracted German measles during her pregnancy, which caused the plaintiff to be born with severe hearing, speech, and sight defects. (10) The plaintiffs parents brought suit on his behalf, alleging that the mother's treating physician, who knew of her German measles, had negligently failed to disclose the likelihood of birth defects such that the mother could have had an abortion. (11) The court noted at the outset of its analysis that the defendant physician did not cause the defect: nothing he could have done would have brought about a perfectly healthy child. (12) Thus, to prove proximate causation as required in tort, the plaintiff would have to classify his existence itself as the injury: "In other words, he claims that the conduct of defendants prevented his mother from obtaining an abortion which would have terminated his existence, and that his very life is 'wrongful.'" (13)

   The Gleitman court ultimately refused to recognize the plaintiff s claim based on his inability to establish an injury that the court could compensate. (14) The court based its denial on its inability to evaluate the relative values of disabled existence and "the utter void of nonexistence," a necessary inquiry to establish damages. (15) "By asserting that he should not have been born, the infant plaintiff makes it logically impossible for a court to measure his alleged damages because of the impossibility of making the comparison required by compensatory remedies." (16)

   Although New Jersey itself has now overruled Gleitman in favor of allowing limited recovery, (17) the current majority rule follows Gleitman and holds that damages are unavailable to a disabled plaintiff. (18) States have variously made the cause of action unavailable by judicial decision (19) or by statute. (20) Courts perceive the same general difficulty with a tort theory of wrongful life as the Gleitman court did: because the physician did not cause the disability, establishing causation requires the harm to be existence, not the disability, and courts are not equipped to measure existence versus nonexistence. (21) The position the New York Court of Appeals adopted in denying the cause of action nicely summarizes the dominant attitude: "Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians" than the judicial system, "particularly in view of the very nearly uniform high value which the law and mankind has placed on human life, rather than its absence." (22)

   A minority of states, however, permit a wrongful life plaintiff limited recovery. Seeking to avoid judicial valuations of childrens' lives, the minority states limit recovery to the child's medical expenses, pain, and suffering. The first state to do so, and to reject the reasoning of the majority of the states, was California in the 1980 case Curlender ex rel. Curlender v. Bio-Science Laboratories. (23) Dealing with an issue of first impression in California, the court evaluated the claim of a child plaintiff born with Tay-Sachs disease against the genetic testing facility and physician her mother had consulted to determine the parents' status as carriers of the disease prior to conceiving a child. (24) The plaintiffs complaint alleged that the defendants' negligence had caused her parents to receive incorrect information, resulting in her birth and a shortened, disabled life. (25) The court acknowledged the difficulties previous courts had recognized as reasons for denying the cause of action, but concluded that "[i]t is neither necessary nor just to retreat into meditation on the mysteries of life," as previous courts had done. (26) The court avoided the issue of measuring disabled existence versus nonexistence and refused to interpret wrongful life as asserting a right not to be born. (27) Instead, the court granted damages for only "the pain and suffering to be endured during the limited life span available to such a child and any special pecuniary loss resulting from the impaired condition." (28)

   In a subsequent case, Turpin v. Sortini, the California Supreme Court sitting en banc reaffirmed the availability of a cause of action for wrongful life but modified the Curlender holding. (29) Turpin criticized Curlender for glossing over the difficulty in establishing injury by focusing only on the plaintiffs condition after birth. (30) The court held that a plaintiff may not recover general damages for being born disabled rather than not being born at all. (31) Instead, he may recover special damages equal to the "extraordinary expenses" required for treatment. (32) The court found traditional rationales persuasive enough to reject general damages, (33) but held that the financial burden on the plaintiffs family and the ability to...