Section 14.19 Wrongful Life and Wrongful Birth

• Library: Family Law Deskbook and 2014 Supp

1. (§14.19) Wrongful Life and Wrongful Birth

Section 188.130, RSMo 2000, provides:

1. No person shall maintain a cause of action or receive an award of damages on behalf of himself or herself based on the claim that but for the negligent conduct of another, he or she would have been aborted.

2. No person shall maintain a cause of action or receive an award of damages based on the claim that but for the negligent conduct of another, a child would have been aborted.

Section 188.130.1 precludes “wrongful life” claims. Section 188.130.2 precludes “wrongful birth” claims.

The Supreme Court of Missouri discussed these theories of recovery and § 188.130 in Wilson v. Kuenzi, 751 S.W.2d 741 (Mo. banc 1988), cert. denied, 488 U.S. 893 (1988). In Wilson, the parents of a child born with Down’s Syndrome filed actions for wrongful life on behalf of their son and their own claims for wrongful birth against a physician who failed to inform them of the availability of amniocentesis, a test given during pregnancy that could determine if
the fetus was afflicted with Down’s Syndrome, and also for failing to inform them of the chance of a child being born with Down’s Syndrome because of the mother’s age. Id. at 741–42. The parents asserted that they were deprived of the ability to make an informed decision about whether to abort the fetus if the affliction had been diagnosed during the pregnancy. Id.

The trial court dismissed the case based on § 188.130. On appeal, the Supreme Court of Missouri held that § 188.130 was not intended by the legislature to be applied retrospectively. Wilson, 751 S.W.2d at 742. But the Court held that causes of action for wrongful life and wrongful birth were not recognized in Missouri before enactment of the...