Wrongful birth is a term used to describe a medical malpractice claim for the birth of a child that would not have been born in the absence of medical malpractice. There are three types of wrongful birth cases: those caused by the failure of a sterilization procedure, those caused by the failure to inform parents-to-be of a birth defect or abnormality in their unborn child, and those caused by a failed abortion attempt. Wrongful birth cases can also be based on a physician’s failure to warn a vasectomy patient of the need to use birth control for several months after the procedure. Wrongful birth suits are based on the premise that the parents of the child wrongfully born would have avoided conception or would have aborted the fetus had the malpractice not occurred.
Currently, twenty-eight states recognize wrongful birth claims, and twelve states specifically prohibit them. The states that prohibit wrongful birth are Idaho, Utah, South Dakota, Minnesota, Oklahoma, Arkansas, Missouri, Kentucky, Michigan, Pennsylvania, North Carolina, and Georgia. The Supreme Court of Utah ruled that its law banning wrongful birth lawsuits was constitutional.
To succeed in a wrongful birth case, the plaintiff must show that the health care provider owed a duty to the plaintiff, that the duty was breached, and that the plaintiff suffered damages as a result of the breach. In cases alleging failure to inform parents of a potential birth defect or failure to detect a birth defect though prenatal testing, the plaintiff must also prove that the mother would have aborted the child had she been properly informed. The issue of damages in a wrongful birth case is a controversial one. While no states have allowed damages awards to cover the entire cost of raising the child, some states limit damages to the cost of the continued pregnancy, the delivery, and the costs associated with any abnormality or defect the child has. Damages can also be awarded for pain and suffering and emotional distress. Some courts offset any damages award by a calculation of the positive impact the life of the child has had on the family.
Similar to a wrongful birth lawsuit is a wrongful life suit. In a wrongful life suit, the child, through a parent or guardian, brings the suit, alleging that but for the claimed malpractice, the child would not have been born. Only a few United States jurisdictions allow wrongful life actions.