Case Summaries
| Jurisdiction | Utah,United States |
| Citation | Vol. 2 No. 7 Pg. 31 |
| Pages | 31 |
| Publication year | 1989 |
August, 1989
William D. Holyoak, J.
NOTE: On March 17, 1989, the Utah Supreme Court issued one of its most important decisions in the last several years. The decision. Berube v. Fashion Centre, Ltd., 771 P.2d 1033 (Utah 1989), held that the employment at will doctrine was subject to exceptions and that a terminated employee could sue on the basis of a contract implied in fact. The Berube decision is discussed in detail elsewhere in this issue of the Bar Journal and is therefore not included in these case summaries.
WRONGFUL PREGNANCY
The United States District Court for the District of Utah certified two questions of law to the Utah Supreme Court:
1. Does a claim for "wrongful pregnancy" resulting in the birth of a normal, healthy child as a result of an unsuccessful sterilization procedure performed by a physician give rise to a tort claim for damages under the laws of the State of Utah?
2. In the event a tort claim for "wrongful pregnancy" is recognized by the laws of the State of Utah, what is the appropriate measure of damages?
The Court first distinguished a claim for "wrongful pregnancy" from claims for "wrongful birth" and "wrongful life." In the Court's words:
"Wrongful pregnancy". . . refers to those cases where parents bring a claim on their own behalf for the monetary and emotional damages they suffered as a result of giving birth to a normal and healthy but unplanned and unwanted child. Such actions are usually based upon a negligently performed or counseled sterilization procedure or abortion, or negligence in preparing or dispensing a contraceptive prescription.
"Wrongful birth, " on the other hand, refers to the cause of action whereby parents claim they would have avoided conception or terminated an existing pregnancy by abortion but for the negligence of those charged with, among other things, prenatal testing or counseling as to the likelihood of giving birth to a physically or mentally impaired child. "Wrongful life" is the corresponding action by or on behalf of an impaired child alleging that but for the medical professionals negligence, the child would not have been born to experience the pain and suffering associated with his or her affliction or impairment. The Court noted that a claim for wrongful pregnancy is recognized by the vast majority of jurisdictions and that the rationale of the majority view is in accord with established principles of negligence theory and Utah's general law regarding proof of malpractice.
The Court then rejected the defendant's argument that Utah Code Sect. 78-11-23 through Sect. 25 (Utah's Wrongful Life Act) preclude a claim for wrongful pregnancy. The Court noted that the "plain language of the legislation evidences that it seeks to address so-called wrongful life and wrongful birth actions and issues." The Court concluded that "an action based on wrongful pregnancy is a valid cause of action in this state."
The Court then turned to the issue of damages. Plaintiff sought recovery for (a) the medical expenses incurred during her pregnancy and the birth of the child and in having a hysterectomy performed after the birth of the child, (b) emotional pain and suffering as well as emotional trauma during and after the pregnancy, and (c) the anticipated costs of rearing and educating a healthy child.
The main opinion, written by Chief Justice Hall and joined by Justice Stewart, responded as follows:
Applying [the] general rule and principles involved in the majority view to the factual scenario of this case, we now conclude that the following...
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