Willis v. Wu in the Supreme Court of South Carolina.

• Author: Bostrom, Barry A.

HELD: South Carolina does not recognize a common law cause of action for wrongful life brought by or on behalf of a child born with a congenital defect because it is impossible to prove that being terminated by elective abortion, and thus never being born, is better than being born and living a life with disabilities.

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Thomas Willis (Child) was born with maximal hydrocephalus, a condition in which the cerebral hemispheres of his brain are missing. Those areas of the brain control thinking, motor control, the ability to speak and move voluntarily, and the ability to interact with others. ACT scan of Child's head at birth showed a very large head filled with fluid, with brain tissue seen only in the frontal and temporal lobes and a brain stem. Physicians placed a shunt in Child's head at birth to drain the fluid and prevent his head from growing larger.

Jennie Willis (Mother) is primary caregiver for Child, who is now eight years old. Child receives various forms of therapy at home and school. He will never be able to care for himself independently. His physical condition and mental abilities are about the same as they were at the age of a few months.

Mother, in her capacity as guardian ad litem for her minor son, brought a wrongful life action on behalf of Child against Donald S. Wu (Physician). Child alleged that because Physician failed to adequately and timely diagnose his condition by prenatal testing and inform Mother of the results, Mother was denied the opportunity to decide whether to terminate the pregnancy while legally allowed to do so. See S.C. Code Ann. [subsection] 44-41-10 to -85 (2002) (prohibiting abortions after the twenty-fourth week of gestation unless two unrelated physicians certify in writing that it is necessary to preserve the life or health of the mother).

Specifically, Child alleged Physician was negligent in failing to timely perform or comprehend the significance of ultrasound examinations that indicated the presence of hydrocephalus in the fetus, a congenital defect that resulted in disability. Child's medical experts testified that Physician and his ultrasound technician failed to diagnose Child's condition and to inform Mother in time for her to decide whether to terminate the pregnancy by elective abortion.

The trial court granted Physician's motion for summary judgment on the wrongful life action, ruling that South Carolina does not recognize it. Child appealed.

Child urged that South Carolina...