What's Unconstitutional About Wrongful Life Claims? Ask Jane Roe ....

• Author: Parker, Bruce R.

Bruce R. Parker, a Partner in Venable's Products Liability Practice Group, has led the expert and science development in several mass torts including breast implants, latex gloves, diesel exhaust, contact lens solution, Mirapex, Actos, Benicar, injectable iron and proton pump inhibitors. He has tried to verdict cases involving breast implants, latex gloves, Mirapex and Actos. He has argued several MDL Daubert hearings as lead counsel. He is a Fellow in the American College of Trial Lawyers. Mr. Parker was President of the IADC (2006-07), President of the Maryland Defense Counsel (1988), Director of the IADC Trial Academy (August 2004), Dean for the IADC Corporate Counsel College in 2011, and served on DRI's Board of Directors (2005-08), and Lawyers for Civil Justice (2006-07).

Scott C. Armstrong is a member of the Product Liability and Mass Torts Litigation Practice Group at Venable LLP in Baltimore, Maryland. A cum laude graduate of the University of South Carolina School of Law, Mr. Armstrong has significant experience defending complex, multi-party litigation cases and regulatory enforcement matters. His current practice focuses on electronic discovery, legal research and writing, and deposition and trial support for complex multi-district litigation involving vaccines and pharmaceutical drug products.

Thomasina Poirot is a member of Venable's Product Liability and Mass Torts Practice Group; her practice concentrates on complex pharmaceutical litigation, medical malpractice, and insurance coverage matters. Ms. Poirot currently represents a pharmaceutical client involved with the defense of the national opioid litigation and additionally plays a significant role in the representation of a leading national laboratory in a variety of litigation matters, including genetic testing and phlebotomy personal injury claims. In addition to her work with pharmaceutical and laboratory clients, she also advises for-profit and non-profit organizations about the adequacy of their insurance portfolios in light of their specific operations and industry and legal risks.

TORT law enables an individual to recover compensatory damages caused by another's wrongful conduct. Compensatory damages, in theory, put the injured party in the same position occupied before the injury occurred. This article proposes that a claim for wrongful life contradicts both the goals of tort law and the holding of Roe v. Wade. (1)

A wrongful life claim is asserted by the legal guardian of an infant born with a genetic disability that has been inherited or developed de novo in utero. Central to the claim is a showing that, had the infant's parents been given correct information, they would have aborted the pregnancy. Since the defendant in these cases did not cause the genetic mutation to occur, the damages sought are not for the genetic injury itself, but for being born. In simple terms, the infant is asserting that it would be better not to exist than to exist with a disability.

Unlike a claim for wrongful life, a wrongful birth claim can be brought by the parents for their economic recovery. The essence of the claim is that, but for the defendant's conduct, the parents would have aborted the pregnancy and would have avoided the extraordinary expenses of raising a disabled child. Wholly aside from philosophical debates about a claim by parents that they would prefer to have no child rather than a disabled child, the tort is consistent with the goals of tort law. That, however is not the case with a claim for wrongful life.

This article will first explore how a wrongful life claim is fundamentally different from a wrongful birth claim. It will explain the reasoning offered by courts in 38 states that have rejected wrongful life claims and will explore the strained rationale offered by the courts in the three states that permit recovery for wrongful life. It will argue that wrongful life claims are constitutionally impermissible because they are incompatible with the rationale that underlies the Supreme Court decision in Roe v. Wade.

1. Most States Reject Wrongful Life Claims

   1. Distinction between wrongful life and wrongful birth claims

      Wrongful life (2) is an action brought on behalf of the infant who suffers from the genetic disorder. The child claims that the physician or other healthcare provider (1) failed to perform accurate genetic testing prior to transferring an embryo or during pregnancy, or (2) failed to accurately inform the child's parents about genetic risks associated with maternal age, physical condition, family medical history, or other parent-specific circumstances. In a wrongful life case, the child does not allege that the negligence of the defendants caused a genetic injury. Instead, the child's claim is that the defendant's breach of the applicable standard of care precluded the parents from aborting the pregnancy.

      Wrongful birth refers to a claim brought by at least the mother who alleges that she would have terminated her pregnancy or avoided conception altogether but for the negligence of the healthcare providers charged with preimplantation genetic testing, prenatal testing, or counseling the parents about the likelihood of giving birth to a child with a genetic abnormality. The underlying premise is that negligently performed or omitted genetic counseling or testing foreclosed the parents' ability to make an informed decision regarding whether to conceive a genetically disabled child or, in the event of a pregnancy, to terminate the pregnancy.

      Wrongful life and wrongful birth claims are both relatively recent developments. As recently as 1967, the law recognized neither wrongful birth nor wrongful life claims. (3) It was not until 1978 that the first court recognized a wrongful birth claim. (4) No State supreme court allowed a claim for wrongful life until 1982. (5) While the vast majority of jurisdictions now recognize a claim for wrongful birth, only three jurisdictions recognize any type of wrongful life claim. Despite recognizing wrongful life claims, none of those three jurisdictions permits a recovery of general damages for the actual injury (life) allegedly caused by the defendant's negligence.

      Unlike wrongful life claims, the claim for wrongful birth is conceptually consistent with the goals of tort law. When medical professionals negligently fail to diagnose or inform parents that they will give birth to a child with potential defects, they have breached the standard of care owed to the mother (6) and deprived the mother of her constitutional right to choose whether to carry her fetus to term. (7)

      Difficulties arise when jurisdictions attempt to develop remedies for the tort of wrongful life. In the counterfactual world envisioned by this claim, the parent-plaintiffs would not experience the emotional joy or difficulty of raising a disabled child. Courts reach different results on whether the emotional joy of raising a disabled child should offset a damage award for the emotional pain and suffering. (8 )Despite the difficulty that courts have faced fashioning a rule for noneconomic damages, the vast majority of jurisdictions recognize the right of at least the mother to maintain an action under these circumstances.

   2. All but three courts have refused to recognize wrongful life claims

      Thirty-eight states, by judicial opinion, statute, or both, have refused to recognize wrongful life claims. (9) In all of the court decisions considering wrongful life, the claim has been considered a negligence-based tort action. Because generally applicable common law tort principles apply, the plaintiffs must plead and prove the existence of a duty, a breach of that duty, as well as a causal relationship that exists between the breach of that duty and an injury. To date, no court has refused to recognize a wrongful life claim based upon the recognition that it is unconstitutional to hold that a duty of care is owed to a fetus prior to viability when under Roe v. Wade and its progeny, no duty is owed to a fetus before the fetus becomes viable. Rather, jurisdictions which have decided not to recognize wrongful life claims have done so based on reasoning that focuses on lack of a legally cognizable injury, the impossibility of calculating damages, and/or the lack of causal relationship between the defendant's conduct and the claimed injury.

      Indeed, only two courts have mentioned in dicta that any putative rights owed to the fetus contradict the mother's rights to obtain an abortion. In Rich v. Foye, (10 )a Connecticut state court briefly mentioned that "[r]ecognizing a claim for wrongful life can also be problematic because any theoretical fetal rights either to come to term or not are subject to the mother's legal rights pertaining to control of her pregnancy." (11 )Additionally, the Oregon Supreme Court briefly noted the conflict between the child's claim and the parent's right to terminate the pregnancy:

      There can be no doubt that recognizing that a child in T's position has an interest in not being born is distinct from, and potentially at odds with, the parents' interests [in making informed reproductive choices] recognized above . . . Thus, recognizing a child's independent legal interest in being conceived and born (or not being conceived and born) would create potential tension with the parents' legal interest in deciding whether or not to conceive and bear that child. (12)

      However, this constitutional conflict was not the holding in either case. Both courts based their decision not to recognize such a claim on other grounds. Yet the law is clear: Roe v. Wade conclusively established that a fetus is not a person and has no legal rights prior to viability. Therefore, there is no duty to a fetus in the first trimester. Without a duty there can be no proximate cause and no damages, thus no liability.

      As discussed more fully in Section II of this article, litigators should incorporate the constitutional argument set...