UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 8, No. 2WINTER 1985
Public Policy over Metaphysics: Wrongful Birth and Wrongful Life in Harbeson v. Parke-Davis, Inc.
I. Introduction
Can birth or life be "wrongful"? In January 1983 the Washington State Supreme Court confronted this question and approved the controversial "wrongful birth" and "wrongful life"(fn1) causes of action in Harbeson v. Parke-Davis, Inc.(fn2) The evolution of these "new torts"(fn3) has been difficult and inconsistent. Past judicial consideration of these issues has resulted in sharp disagreement over policy justifications. Various parties have described the factual and philosophical bases for the actions in such terms as an "utter void of nonexistence,"(fn4) a "Fascist-Orwellian societal attitude of genetic purity,"(fn5) and a "retreat into meditation on the mysteries of life."(fn6)
State courts differ on the recognition of these torts. Since 1973 every jurisdiction confronted with a wrongful birth issue or claim has accepted this cause of action,(fn7) but wrongful life has met with very limited acceptance.(fn8) In Harbeson, a unanimous Washington State Supreme Court broke from this pattern and recognized both wrongful birth and wrongful life as causes of action.(fn9) This decision has fostered considerable concern and comment.(fn10)
The recognition of the wrongful birth and wrongful life causes of action by the Washington State Supreme Court is supported by both policy rationales and legal theories. Wrongful birth and wrongful life causes of action receive support from traditional tort principles(fn11) and, more important, further public policy by deterring negligent genetic counseling(fn12) and negligent preconception medical treatment.(fn13) This Note describes the legal history of these claims and analyzes several issues not addressed by the Washington court. In addition, this Note criticizes a more recent decision(fn14) by the court, which limits wrongful conception causes of action, because that decision conflicts with the policy arguments presented in Harbeson.(fn15)
II. The Harbeson Case
The plaintiffs in Harbeson were Leonard and Jean Harbeson and their children, Elizabeth and Christine Harbeson. In December 1970 Jean Harbeson suffered a grand mal seizure(fn16) and was diagnosed as an epileptic.(fn17) Military physicians(fn18) prescribed Dilantin(fn19) to control the seizures. Subsequently, the Harbesons were transferred to a military base in Washington State, and Mrs. Harbeson went to Madigan Army Medical Center(fn20) for treatment of her epilepsy.(fn21)
When the Harbesons contemplated having more children, they consulted three doctors at Madigan about the risks of using Dilantin during pregnancy.(fn22) Although each doctor explained that cleft palate(fn23) and temporary hirsutism(fn24) could result, none of the doctors conducted a search of relevant literature for a potential correlation between Dilantin and birth defects.(fn25) The Harbesons contended that if they had been informed of the potential birth defects associated with the use of Dilantin during pregnancy, they would not have had any more children.(fn26) Relying on the doctors' assurances, the Harbesons decided to have more children, and Mrs. Harbeson later gave birth to two children, Elizabeth and Christine.(fn27)
Elizabeth and Christine were born with "fetal hydantoin syndrome,"(fn28) a condition characterized by growth deficiencies, developmental retardation, wide-set eyes, and other physical and developmental defects.(fn29) Mrs. Harbeson did not suspect that Dilantin had caused her children's birth defects until she saw a poster at Madigan warning of the correlation between Dilantin and birth defects.(fn30) Subsequent tests established that Dilantin was the cause of the defects.(fn31)
After hearing the evidence, the federal district court(fn32) made a number of conclusions of law(fn33) and certified to the Washington State Supreme Court the question of whether the wrongful birth and wrongful life actions could be maintained in Washington.(fn34) The state supreme court answered those questions in Harbeson and established that in appropriate circumstances, parents can maintain wrongful birth actions and their children can maintain wrongful life actions. The court also set forth the standard for the measure of damages in each claim. The measure of damages for a parent's successful wrongful birth claim is the pecuniary damage associated with the child's birth, the special pecuniary damages arising from the child's defective condition, and the parent's emotional injuries caused by the birth of the defective child.(fn35) The measure of damages for a child's successful wrongful life claim is the cost of special medical treatment and training associated with the defects.(fn36)
III. Wrongful Birth
A. Historical Development
The first claim by parents for the wrongful birth of a child born with defects was in Gleitman v. Cosgrove,(fn37) a case before the New Jersey Supreme Court in 1967. In Gleitman, the plaintiff contracted rubella during her pregnancy. When she informed her gynecologist of the illness, he told her that the rubella would not affect the child.(fn38) The doctor failed to inform the plaintiff that there was a twenty-percent chance that defects would occur.(fn39) The mother claimed that if she had known of the possibility of defects, she would not have allowed the pregnancy to continue and would have obtained an abortion.(fn40)
The New Jersey Supreme Court rejected the plaintiffs claim and the concept of wrongful birth for two reasons. First, the court stated that the current public policy against abortion would not support the recognition of a wrongful birth cause of action. In the court's language, "substantial policy reasons prevent this Court from allowing tort damages for the denial of the opportunity to take an embryonic life."(fn41) The second reason for rejecting wrongful birth was the difficulty of measuring damages.(fn42) To determine the damages, the court said that it would have to "evaluate the denial to them [the parents] of the intangible, unmeasurable, and complex human benefits of motherhood and fatherhood and weigh these against the alleged emotional and money injuries."(fn43)
The rejection of wrongful birth claims merely because of public policies against abortion lost some legal support in 1973 with the decision in Roe v. Wade.(fn44) In Roe, the United States Supreme Court recognized a constitutional right of privacy and applied that right to a person's procreative activities, including abortion in some circumstances.(fn45) Once this constitutional right was established, any interference with that right would create a cause of action for the parents.
Accordingly, the New Jersey Supreme Court recognized a wrongful birth action, reversing Gleitman, in Berman v. Allan.(fn46) The court noted the legal changes in the twelve years since Gleitman, principally the Roe decision, and stated that "[p]ublic policy now supports, rather than militates against, the proposition that she [the mother] not be impermissibly denied a meaningful opportunity to make that decision."(fn47) Other jurisdictions adopted similar reasoning and accepted claims of wrongful birth of children with defects, noting the inapplicability of abortion considerations in the analysis of the cause of action.(fn48) Since Roe v. Wade, all courts facing wrongful birth actions have accepted this reasoning.(fn49)
The difficulty of measuring the damages that result from a wrongful birth was the second concern noted in Gleitman.(fn50) This issue has not been resolved as easily as the abortion and privacy issues. The measure of damages varies widely from state to state.(fn51) The three current variations are: first, all the costs of raising the child;(fn52) second, the special cost incurred in raising the child;(fn53) and third, the pecuniary and emotional damages suffered by parents plus the special costs of raising the child.(fn54)
B. The Washington View
When the Washington Supreme Court considered wrongful birth in Harbeson, the cause of action was well established in other jurisdictions.(fn55) The court began by defining wrongful birth as the parents' action against "a physician [who] failed to inform [them] of the increased possibility that the mother would give birth to a child suffering from birth defects . . . [thereby precluding] an informed decision about whether to have the child."(fn56) Under this definition, wrongful birth actions would be limited to violations of the physician's duty to obtain informed consent.(fn57) Injuries arising from negligently performed sterilization procedures or genetic counseling would not be actionable.
After presenting this definition, the court discussed with approval the case of Speck v. Finegold.(fn58) In that case, a man who suffered from a genetic disorder called neurofibromatosis(fn59) underwent a vasectomy to avoid having children and passing on the disorder. The vasectomy was negligently performed, and Mrs. Speck became pregnant and gave birth to a daughter who also suffered from neurofibromatosis. The Washington court saw no reason to exclude this type of action from the definition of wrongful birth.(fn60) The breach of the physician's duty to perform sterilization procedures with due care has the same effect of interfering with...
