Frasca, Journal of Forensic Economics (2005)

National Association of Forensic Economics
Negligent Beginnings: Damages in Wrongful Conception, Wrongful Birth and Wrongful

Life
Author(s): Ralph R. Frasca
Source: Journal of Forensic Economics, Vol. 19, No. 2 (Spring/Summer 2006), pp. 185-205
Published by: National Association of Forensic Economics
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Journal of Forensic Economics 19(2), 2006, pp. 185-205
2007 by the National Association of Forensic Economics
Negligent Beginnings: Damages in Wrongful Conception,

Wrongful Birth and Wrongful Life
Ralph R. Frasca*
I. Introduction
This paper is concerned with the negligent beginnings of an unwan

child. Four related torts are predicated on the assumption that had an
not occurred, the child would not have been born. The four torts commonly
sociated with an unwanted child are wrongful conception, wrongful pregnan
wrongful birth and wrongful life. In an action for wrongful conceptio
wrongful pregnancy the woman would not have become pregnant or given b
but for negligence. With wrongful conception, the negligence occurs before
child is conceived. This differs from wrongful pregnancy in which the a
negligence takes place during the pregnancy. The terms "wrongful concep
and "wrongful pregnancy" are generally restricted to situations that res
the birth of a healthy child. This is distinct from a wrongful birth or wron
life case which involves the birth of an unhealthy child. In these cases a d
tive fetus would have been aborted and the birth of an unhealthy child w
have been avoided, if the negligence had not occurred. The difference bet
wrongful birth and wrongful life is that in wrongful birth the parents brin
legal action and seek damages; whereas, in wrongful life it is the child
seeks damages and the child or the child's representative who brings the
suit.1
The rationale underlying these tort actions and the jurisdictions in w
these are permitted will be reviewed. We begin first by defining and examin
the various types of negligent beginnings and then proceed to examine the d
ferent approaches the courts have taken in assigning consequential dam
There is disagreement among the states as to whether tort actions relate
negligent beginnings should be permitted. Where permitted, there is d
agreement over how consequential damages should be determined. Acco
ingly, there can be a wide variation in the damages awarded for similar a
negligence in different jurisdictions.
Each of these torts presents a unique problem for damage valuation an
sis. The traditional rule for damages in wrongful death and personal inju
that perfect compensation should return the victim to the position he o
was in before the injury. In each tort discussed in this paper, the injur
predicated on the birth of an unwanted child. In theory, perfect compen
should make the parents indifferent between no child and the unwanted
'Department of Economics, University of Dayton, Dayton, OH.

xFor a more complete discussion of these torts see Croon (2002). These actions raise imp
questions concerning disability rights. See Hensel (2005).
185
186 JOURNAL OF FORENSIC ECONOMICS
in wrongful conception, wrongful pregnancy and wr

wrongful life damages should make the child indiffe
non-existence. Positive damages for wrongful life im
of the negligent life is negative. Obviously, the
upon opportunity costs can be problematic in thes
reason, the courts have often determined ad hoc dam
cussed in this paper.3
II. Definitions and Liability
Wrongful conception can result from an abortion or the birth of an un-

planned child.4 The damage action assumes the parents did not desire the
pregnancy. The unplanned pregnancy may be due to failed birth control, negli-
gent provision of birth control or a negligently performed sterilization. A
wrongful pregnancy action assumes the negligent act occurred after the con-
ception. Wrongful pregnancy may result from the failure to identify a preg-
nancy in a timely manner or a negligently performed abortion. The associated
issues of liability and damages in wrongful conception and wrongful pregnancy
are treated similarly in the courts, therefore the term "wrongful pregnancy"
will be used to indicate both of these related torts.
Wrongful pregnancy assumes the birth of a healthy child. Accordingly, a
couple who conceives a child with a defect because of a hereditary misdiagnosis
is more likely to instigate a wrongful birth suit, rather than a wrongful concep-
tion suit. A wrongful birth or wrongful life action assumes the birth of a child
with significant medical problems.
Birth related torts may also be categorized by the parent's intentions. In
wrongful pregnancy, the birth of the child is not planned: whereas, in wrongful
birth or life, the birth of an expectedly healthy child is planned.5 The birth of a
healthy child in wrongful pregnancy is the direct result of malpractice. Thus,
the analysis of causation is similar to that of other torts. The link between
negligence and harm is more tenuous in wrongful birth and life. It is the birth
and not the defect which is the result of malpractice. The birth defect accom-
panies the malpractice, but is not directly caused by the malpractice. This is
different from a legal action in which the physician negligently injures the
child during delivery. This can result in a typical malpractice suit to compen-
2See Cooter and Ulen (2004), p. 245. for a discussion of perfect compensation.
3Tort reforms may also affect damages in these cases. The specific impact of tort reforms is not
dealt with in this paper. Some reforms, such as damage caps, are applied after the jury has deter-
mined damages. Consequently, they would have no impact on the calculation of economic damages
by the economist. See United States Congressional Budget Office, "Limiting Tort Liability for
Medical Malpractice," January 8, 2004.
4The definitions applied in this paper are used in current court decisions and are generally ac-
cepted. It took the courts at least two decades to arrive at this consensus. In the past, especially in
early decisions on wrongful birth, definitions were not consistently applied. The definitions as ap-
plied here can be found in Mogill (1996), Burns (2003) and Strasser (1999).
5If the parents were seeking sterilization for economic reasons and then gave birth to an impaired
child, it is not clear whether the courts would view this as a wrongful conception or a wrongful
birth. See Mark Strasser (2003), p. 826.
Frasca 187
sate personal inju

wrongful life act
gence. The harm i
assumes that but
medical negligen
fetus. The injury
timely manner, th
tus.
A tort requires both negligence and damage; negligence without injury

does not rise to a tort.6 Accordingly, it is possible to have negligence in the
provision of a prenatal service without liability for damages.7 Suppose the par-
ents had decided not to have a child because there was a significant chance of
conceiving a child with a birth defect. Subsequently, after a negligent steriliza-
tion the mother becomes pregnant. Despite the significant probability of a de-
fective child, she gives birth to a healthy child. As a result, the parents would
not ordinarily have suffered economic damages.8 Suppose, however, the
sterilization had been desired for financial reasons rather than genetic incom-
patibility. It follows that the birth of a healthy child imposes a financial burden
the parents had attempted to avoid. Since the parents had preferred the no
child state to the child state, it can be assumed that the parents have suffered
harm. Consequently, the motivation for not desiring a child may determine
whether the parents have been injured.
A motivational analysis may raise troubling questions for the courts when
the reason for not wanting a child depends more on lifestyle choices than fi-
nancial hardship.9 Some couples may prefer to remain childless simply because
the child may create a social burden that interferes with plans for travel and
entertainment. From an economic perspective the non-pecuniary nature of the
injury does not change the fact that this couple, who has revealed their prefer-
ences by the choice of medical procedures, has suffered an injury. Assuming
rationality, the opportunity cost of the chosen alternative must exceed the ex-
pected burden of child rearing, but how can the forensic economist value the
difference? What is the value of a European vacation that can no longer be
taken or a Friday night spent babysitting instead of night clubbing? Innovative
techniques may permit an approximate valuation of these lost opportunities,
but such testimony is unlikely to be of help to plaintiffs attorney. A jury of
adults with children will not likely be sympathetic to damages based upon such
lost opportunities.
6Cooter and Ulen (2004), p. 311, discuss the three elements that must be present under the tradi-
tional theory of torts: harm, cause and the breach of a duty.
7An additional reason for not awarding damages is that they were not foreseeable. The legal ques-
tion of forseeability is not discussed in this paper. See Cooter and Ulen (2004), p. 265, for a discus-
sion on forseeability and damages. Consider two types of medical negligence; a negligent steriliza-
tion and a misdiagnosed heredity. Assume that in both cases a child is born with a birth defect. In
the first case, the birth defect may be an unforeseen event. In the second, of course, it is a notewor-
thy probability. The prospective parents are obtaining genetic counseling to avoid this event.
^his may be still brought as a breach of contract case for non-performance.
9See Alvarez (2000).
III. Wrongful Birth and Life
It is generally believed that wrongful birth and life

common as prenatal testing for birth defects beco
thus, increases the due diligence required of physic
new technology can make mistakes less likely. Thus, it
number of such cases will increase or decrease in the future. This historical
data do not seem to indicate a trend in either direction. Figure 1 contains th
sum of total payments in wrongful birth and life cases listed in the Nation
Practitioner Data Bank (NPDB) for 1991 to 2004.11 It does not appear that
there is any discernable trend in total dollar payments over this period. Figu
2 presents total dollar payments for a wider group of claims consisting of o
stetrics claims and all medical malpractice claims. It is clear that total pay
ments on these claims have increased over the benchmark period. Thus,
wrongful birth/life claims have not kept up with payment on other medical
malpractice actions.
Actions for wrongful birth and wrongful Ufe assume that an abortion is an
available option. Therefore, wrongful birth and life suits only became generally
possible after the Supreme Court decision in Roe v . Wade.12 If Roe v. Wade
were overturned and state policy prohibited abortions, previous decisions on
wrongful birth and life would have to be re-examined. Negligence that denies
the opportunity for an illegal abortion would likely have no legal impact.13 It
would be against social policy to award damages for the denial of illegal oppor-
tunities.
Typical causes of a wrongful birth or wrongful life action include failure to
warn of potential birth defects due to illness, misdiagnosis of the fetus, negli-
gent genetic counseling and negligent sterilization or abortion.14 Each of these
causes prevents parents from making an informed decision to abort a fetus. It
is assumed that had any of these breaches in duty not occurred, the child
would not have been born.
From an economic perspective, wrongful birth damages may be viewed as
the incremental or non-incremental costs of wrongful birth. It may be assumed
that if this child were not born then an alternative healthy child would have
been born to the parents. Thus, only the incremental cost of caring for the im-
paired child relative to a healthy child may be included in damages. However,
if the negligence had been the result of a genetic misdiagnosis, it is unlikely
the parents would have had an alternative healthy natural born child. Without
a healthy child alternative, economic damages might include the full cost of
10For example, see Lindsay Fortado (2004), p.l.

"The NPDB and a guidebook to the data bank can be found at http://www.npdb-hipdb.com/. The
NDPD contains all payments from insurance companies or business entities to individual plaintiffs
that close malpractice cases. The entries are coded by the payers. Accordingly, there is no assur-
ance that the payments have been coded correctly. A discussion of coding problems in this database
can be found in National Practitioner Data Bank: Major Improvements Are Needed to Enhance
Data Bank's Reliability , GAO-01-130, General Accounting Office (November 2003).
12410 U.S. 113 (1973)
13For the impact of Roe v. Wade on wrongful birth actions see Berenson (1990), p. 895, and Bern-
stein (2001), p. 302.
"Berenson (1990), p. 896.
Frasca 189
child rearing. Ev
Therefore, in all
thetically limit da
Figure 1
Figure 2
IV. Damages for Wrongful Pregnancy
The National Survey of Family Growth indicates

unwanted, but a much larger percentage, 21.6, are m
that very many of these births result from profess
ever, given the general acceptance of sterilization as an
control even a small percentage of incorrectly perfor
in a large absolute number of cases. Among married c
age 15-44, 21.7% of the females and 12% of the males
tion.16
Of the various types of suits related to negligent beginnings discussed in
this paper, wrongful pregnancy actions are the closest to traditional malprac-
tice cases for the economist. It is probably for related reasons that 42 jurisdic-
tions specifically permit wrongful pregnancy suits. Moreover, it is likely that in
the remaining states these actions will be permitted when tried. Except for
Nevada, there does not seem to be an explicit ruling denying such actions.17
Even Nevada has not completely closed the door on wrongful conception ac-
tions.18 In Szekeres v. Robinson, the Supreme Court of Nevada suggested that
such actions for wrongful conception may be brought as claims for breach of
contract.
The dilemma faced by the courts in wrongful pregnancy cases is whether
the benefits bestowed on the parents from delivering a healthy child inevitably
outweigh the costs imposed on them.19 If so, there is no liability for wrongful
pregnancy, since there are no net damages. Without damages, however, there
would be no assurance that birth prevention would be competently provided.
Moreover, the parents have revealed their preferences in favor of not having
another child. Therefore, the need for deterrence, as well as compensation,
calls for damages.20
There is also considerable concern as to what constitutes required mitiga-
tion. In most situations, the damages flowing from a wrongful pregnancy may
be mitigated by an abortion. In a typical tort action the victim has a responsi-
bility to mitigate damages. The possibility of mitigation often plays a signifi-
cant role in the forensic economist's estimate of damages given personal injury.
The responsibility to mitigate normally arises when mitigation is efficient, or
in the usual language of the court, when the effort is "reasonable." It is reason-
able and efficient when the cost of mitigation is less than the harm to the vic-
tim given non-mitigation. A strict rule of mitigation might require that all
wrongful conceptions be terminated, and therefore, limit economic damages to
16Abma, et al. (1997), p. 13.

16William D. Mosher, et al. (2004), Table 13, p. 24.
17See Appendix Table 1 for a list of states.
l8Szekeres v. Robinson (1986). Kansas is also often listed as anti-wrongful conception based on
Byrd v . Wesley Med. Ctr. (1985). However, this decision permitted limited damages in wrongful
pregnancy. Therefore, it is Usted here as a state in which damages for wrongful pregnancy are
awarded.
19The United States Department of Agriculture and certified life care planners are potential
sources of data on the cost of raising a child.
^Minimal damages might still be available under a breach of contract suit.
Frasca 191
little more than

nores the emotion
abortion, but the
the abortion alter
may outweigh th
emotional costs,
tween abortion and a cause of action has been termed a "Hobson's choice."
Where wrongful pregnancy actions are allowed, damages are not limited t
cost of an abortion. Most states do, however, set severe restrictions on ec
nomic damages in wrongful conception.
While almost all jurisdictions allow damages for wrongful pregnancy, ther
are considerable differences among jurisdictions and within jurisdictions
time on the calculation of damages. Consequential damages could include
following.
Birth and pregnancy damages

Reimbursement for cost of unsuccessful medical service
Medical expense of prenatal care
Loss of consortium during pregnancy
Lost market wages during pregnancy
Cost of delivery or abortion
Emotional distress caused by unwanted pregnancy and breach
of duty
Pain and suffering from child birth and failed procedure
Lost household services and care to other family members
during pregnancy
Post birth damages

Cost of raising a child
Lost market wages during child rearing
Lost household services and care to other family members
during child-raising years
Had the child not been born, all of the mental and monetary costs associ-
ated with the birth of the child and the subsequent care of the child would be
absent. Assuming there was a permanent desire not to have a child; these in-
clude all foreseeable economic costs imposed on the victim. The cost calculation
is more complicated if the parents did not want a child now, but did want a
child in the future. In the case of a prematurely timed offspring, child rearing
cost would have been delayed but not eliminated if the negligent birth had
been avoided. Thus, the economic cost may be limited to the time value of
money that would have been gained by delaying anticipated expenditures plus
any additional expenditure or implicit opportunity cost that is uniquely associ-
ated with the early birth.
21See Block (1985).

22For example see University of Arizona Health services Center v. Arizona (1983), tn 5.
In addition to the incremental costs, the unintend

benefits for the parents. It is typically assumed by th
healthy child gives rise to emotional and societal be
becomes, should the court award gross damages or
damages be equal to the cost of parenting less the
there are net damages, how is the joy of a child weigh
Some courts have allowed the trier of fact to weig
whereas, others have held that the non-pecuniary b
not offset the pecuniary costs of child rearing beca
interests. The Restatement of Torts only requires mit
and costs encompass the same interest.23 In some ju
interests of the family are viewed as distinct from th
est. Different answers have caused damage method
risdictions. Where wrongful pregnancy has been re
tort, damages rules fall into four distinct categories: n
ery, net recovery and full recovery.
No recovery
Limited recovery
o Limited to birth and prenatal expense
emotional benefits
Net recovery (Benefits rule)
o Trier of fact weighs the full cost of rearing a child and
reduces damages by the expected benefit of a healthy
child
Full recovery
o The cost of pregnancy, childbirth and rearing is not
offset by non-pecuniary benefits of child
Most courts (32) apply the limited recovery rule.24 These courts implicitly
take benefits into consideration by limiting damages to the costs incurred
during the pre-natal period and childbirth. There is no need to take the benefit
of the child into consideration, because all cost and benefits that occur after the
birth of the child are excluded from consideration. Under the limited recovery
rule, damages usually include reimbursement for the failed medical procedure
and the cost of prenatal care and delivery. Many jurisdictions also include
23Restatement (Second) of Torts 920 and Mogill (1996), p. 865.

24See Boone v. Mullendore (AL 1982); M.A. v. United States (AK 1998); Wilbur v. Kerr (AR1982);
Coleman v. Garrison (DL 1975); Flowers v. District of Columbia (DC 1984); Fassoulas v. Ramey (FL
1984); Fulton-Dekalb Hosp. Auth. v. Graves (GA 1984); Cockrum v. Baumgartner (1983); Garrison
v. Foy (IN 1985); Nanke v . Napier (IA 1984); Byrd v. Wesley Medical Ctr. (KS 1985); Schork v.
Huber (KY 1983); Pitre v. Opelousas Gen . Hosp. (LA 1987); Macomber v. Dillman (ME 1986); Ri-
nard v. Biczak (MI 1989); Girdley v. Coats (MO 1992); Hitzemann v. Adam (NE 1994); Kingsbury v.
Smith (NH 1982); P. v . Portadin (NJ 1981); O'Toole v. Greenberg (NY 1985); Jackson v. Bumgard-
ner (N.C. 1986); Johnson v. University Hosps. (OH 1989); Morris v. Sanchez (OK 1987); Mason v.
Western Pa. Hosp. (PA 1982); Diane Emerson et al. v. Henry Magendantz, M.D., et al. (RI 1997);
Smith v. Gore (TN 1987); Terrell v. Garcia (TX 1973); C.S. v. Nielson (UT 1988); Miller v. Johnson
(VA 1986); McKernan v. Aasheim (WA 1984); James G. v. Caserta (WV 1985); Beardsley v.
Wierdsma (WY1982).
Frasca 193
damages for lost

niary losses may
tress and the fath
The limited recov
child outweigh th
pre and post nata
icy that all healt
regulate negligen
complete offset w
gent pre-natal ser
was not their fir
denial of choice.
the traditional ro
tion to the victim
ages rule is deter
of the child into
that the tort was
same reasoning is
Courts have also
the speculative n
costs are no mor
sonal injury and
whether an offse
that prospective
this issue. Some decisions contend that it would be detrimental to the welfare
of the child if the parents had to argue that the child was a detriment to their
welfare.
In the minority of states that allow damages for child care costs, some off-
set these costs with emotional benefits and others do not.28 The difference
hinges on the determination as to whether the related pecuniary costs and
non-pecuniary benefits are separate and distinct interests.29 If they are sepa-
rate then the benefits of a child can not be used to offset the costs of the child.
Applying this logic, four jurisdictions have ruled that the parents are entitled
to the full cost of raising the child without any offset for non-pecuniary bene-
fits. 30
Damages for pain and suffering are not diminished by showing that
the earning capacity of the plaintiff has been increased by the defen-
25Mogill (1996), p. 854.

26See Strasser (1999), p. 182.
27This would not be a concern with a negligent sterilization, but could be with a negligent abortion.
28The relevant cases in the nine jurisdictions that allow child rearing costs are University of Ariz.
Health Servs . Ctr. v . Superior Court (AZ 1983); Custodio v. Bauer (CA 1967); Ochs v. Borelli (CN
1982); Jones v. Malinowski (MD 1984); Burke v. Rivo (MA 1990); Sherlock v . Stillwater Clinic (MN
1977); Lovelace Medical Ctr . v. Mendez (NM 1991); Zehr v. Haugen (Or. 1994); Marciniak v. Lund
borg (WI 1990).
29See Podweils, p. 420.
30The four states are California ( Custodio v. Bauer , 1967); New Mexico (Lovelace Med . Ctr . v.
Mendez , 1991); Oregon ( Zehr v. Haugen , 1994); and Wisconsin ( Marciniak v. Lundborg , 1990).
dans act. . . . Damages to a husband for loss of conso

minished by the fact that the husband is no longer u
of supporting the wife. ( Marciniak v. Lundborg , Wis
In this view, the birth of the child is not the injury

expenses of raising the child that is the harm.
There are five jurisdictions that apply the net r
the "benefits" rule by the courts.31 Under the net
consider both the benefits and the costs of child r
ages. In effect, the trial court is allowed to offset pe
cuniary benefits. In these jurisdictions there is ge
given the parent's attempt to avoid the pregnanc
benefits.32
In Burke v. Rivo (1990), the Massachusetts Supre
sons why couples might seek sterilization.
1. genetic - to prevent birth of a defective child

2. therapeutic - to prevent harm to the moth
3. economic - to avoid the additional expense
It is likely that most sterilization procedures are

sons. Results from the National Survey of Family
about 21% of women and 7% of men mention med
sterilization.33 In all other sterilizations, the pros
cluded that the benefits of child rearing do not o
The economic reasons may vary from an encroachme
vere economic hardship. Only about 14% of wome
that they could not afford more children as a notabl
The benefits rule allows the trier of fact to consid
tion for avoiding a prospective birth.34 This may
from the birth. The birth of a healthy child given c
seling does not likely represent a net harm. Moreove
who wanted to avoid pregnancy because it could h
vide the foundation for a typical malpractice suit
nancy action.
As stated by the Massachusetts Supreme Court,
... where the parent sought sterilization in order to a

genetic defect, the jury could easily find that the un
healthy, non-defective child was a blessing rather
Such evidence should be admissible, and the rule w
allow the jury to learn all the factors relevant to the
whether there has been any real damage and, if so, h
confident that the inherent good sense of the jury is
to "runaway" verdicts and unfounded speculation in t
31These are Arizona, Connecticut, Maryland, Massachusetts and

Z2Burke v. Rivo (MA 1990), p. 759.
33Chandra (1998), p. 30.
34For a full discussion of the motivational analysis see Alvarez (
Frasca 195
ages, provided tha

tic terms. ( Univ
Court , 1983, p. 58
In net recovery a
restricted to the c
ing expenses. In
stated:
The economist demographer's testimony in this case as to the costs of

raising Juanita was based on standard economic projections; his cal-
culations took into consideration the employment and earning capacity
of the Malinowskis, the expenditures to be made, inflation, the con-
sumer price index and other relevant economic criteria.
The primary area of complexity with respect to the damage calcula-
tions in this case focuses upon the offsetting benefits rule which re-
quires the jury to mitigate economic damages by weighing them
against the worth of the child's companionship, comfort and aid to the
parents. The jury must assess these benefits in light of the circum-
stances of the particular case under consideration, taking into account,
among other things, family size and income, age of the parents and
other relevant factors in determining the extent to which the birth of
the child represents a benefit to the parents, (p. 272)
In summary, wrongful pregnancy actions are recognized in almost all ju-

risdictions. A significant majority of jurisdictions limit damages to pre-natal
injuries and expenses. In these jurisdictions the economist's testimony would
be restricted to the cost of pregnancy, childbirth, and other related losses at
opportunity costs. In nine jurisdictions that apply a net recovery or full recov-
ery rule, economists may also estimate the cost of child rearing.
V. Damages for Wrongful Life
Wrongful life and wrongful birth actions presuppose the birth of a child
with a defect or impairment. Being born into a poor family is not an adequate
rationale for a wrongful life or birth action. If the birth defect were directly
caused by the malpractice, this would be no different from other torts. In negli-
gent birth cases, however, the birth defect was caused by factors that are inde-
pendent of the malpractice. The malpractice does not affect the probability of
the given child having a birth defect. The malpractice results in the birth, not
the defect. The injury in a wrongful birth or wrongful life suit is the denial of a
choice that would have resulted in an abortion. Had the malpractice not oc-
curred, the child would not have been born. An abortion is the foregone desired
outcome.
It may be that the physician or health care provider failed to diagnose
discover a genetic defect through prenatal testing or counseling in time for th
parents to avoid or terminate a pregnancy. The mother may have intended
pregnancy; but, if she had the correct information, she would have chosen
to carry the fetus to term. The injury, the birth, is the same in wrongful birt
and wrongful life suits.
Ideally, perfect compensation makes the plaintiff

ligence and non-negligence. In a wrongful birth a
must express indifference. The quandary in a wron
fect compensation would make the child indifferent
existence. This is the polar opposite of a wrongful
ages are those associated with the denial of life.
No one knows what it is like not to be born. Con
to know or even speculate on the correct compens
dollar amount equates "to be" with "not to be?" W
denied, the rationale has often rested on the specu
calculation or a public policy denial that life can e
ceived by some courts to be against our social and
sider life a wrong. Life is not an injury; therefore, i
ered a good. It is a contradiction to award damage
laws against assisted suicide and euthanasia. On th
consistent to award damages for the hedonic valu
while denying related damages in wrongful life?
baseline for measuring the hedonic value of life. If
line, how we can measure the objective value of life o
unborn?
Thirty-one states have rejected wrongful life suits by court decision or
statute. Wrongful life cases are permitted in only three states as determined by
court opinion in California, New Jersey and Washington and one by statute,
Maine.36 Where such actions have been permitted the courts have emphasized
the pecuniary nature of the harm and denied general non-economic damages.
As stated by the New Jersey Supreme Court, "Our decision to allow the recov-
ery of extraordinary medical expenses is not premised on the concept that non-
life is preferable to an impaired life, but is predicated on the needs of the liv-
ing." ( Procanik v . Cillo , at 353, 1984) The California Supreme Court discussed
the difficulties associated with assessing general damages in wrongful life.
While it thus seems doubtful that a child's claim for general dam-
ages should properly be denied on the rationale that the value of im-
paired life, as a matter of law, always exceeds the value of nonlife, we
believe that the out-of-state decisions are on sounder grounds in hold-
ing that- with respect to the child's claim for pain and suffering or
other general damages- recovery should be denied because (1) it is
simply impossible to determine in any rational or reasoned fashion
whether the plaintiff has in fact suffered an injury in being born im-
paired rather than not being born, and (2) even if it were possible to
overcome the first hurdle, it would be impossible to assess general
damages in any fair, nonspeculative manner. ( Andaln v . Superior
Court , at 614, 1984)
36Berenson (1990).
^See Andaln v. Superior Court (CA 1984); Procanik v. Cillo (NJ 1984); and Harbeson v. Parke -
Davis , (WA 1983). The statue in Maine is P.L 1985, ch. 804, 22 which is part of Maine's Health
Security Act.
Frasca 197
The special dama

expenses that are
include the loss o
earnings.
There is no loss of earning capacity caused by the doctor in negli-

gently permitting the child to be born with a genetic defect that pre-
cludes earning a living. One cannot lose what one never had. The
plaintiff-child never had a wage-earning capacity that was taken away
by the conduct of the doctor and cannot, therefore, claim compensation
for its loss. {Andaln v. Superior Court , at 614, 1984)
Since life is the wrong, the perverse result is that a plaintiff with a longer
life expectancy should receive greater compensation. Damages in a wrongful
life case ideally are presented by a life care planner and an economist. The life
care planner sets out extraordinary expenditures from the age of majority on-
ward. These would include all extraordinary medical, living and educational
expenses. It is the economist's role to calculate the present value of the ex-
traordinary life care expenditures and to ensure that there has been a proper
deduction of offsets. There has been an ongoing conversation in the forensic
literature as to whether expenditures for food and lodging should be deducted
from nursing home costs when estimating damages in personal injury.37 For
the current discussion this seems moot in light of clear statements in the juris-
dictions that approve wrongful life actions that only extraordinary expenses be
included. Consequently, any expenditure in the life care plan for ordinary
medical or personal maintenance expenses should be eliminated by the econo-
mist.
VI. Damages for Wrongful Birth
Eleven jurisdictions have rejected wrongful birth actions by court decision

or statute.38 A larger number, 25 have permitted wrongful birth claims.39 The
parents are the victims in a wrongful birth suit. Accordingly, damages can in-
clude the losses suffered by the parents up to the lesser of the child's lifetime,
the age of majority, or when the parents are no longer legally responsible for
37See Feldman and Egge (1995), Slesnick (1990) and Barrett (2001).
38The relevant court cases are Wilbur v. Kerr (AR 1982); Atlanta Obstetrics & Gynecology Group v.
Abelson (GA 1990); Grubbs v. Barbourville Family Health Ctr . (KY 2003); Azzolino v. Dingfelder
(NC 1985). The relevant statutes are Idaho Code 5-334 (Supp. 1986); Mich. Comp. Laws Ann.
600.2971 (West 2001); Minn. Stat. 145.424 (West 1998); Mo. Ann. Stat. 188.130 (West 1996); 42 Pa.
Cons. Stat. Ann. 8305 (West 1998); S.D. Codified Laws 21-55-2 (Michie 1987); Utah Code Ann. 78-
11-24 (1996).
39The cases and a statute in which wrongful birth has been recognized are as follows: Keel v. Ba-
nach (Al. 1993); University of Arizona Health Sciences Center v . Superior Court (AZ 1983); Turpin
v. Sortini , (CA 1982); Lininger v. Eisenbaum , (CO 1988); Woodruff v. Hoffman (CT 1983); Garrison
v. Medical Center of Delaware (DE 1989); Haymon v. Wilkerson (DC 1987); Kush v. Lloyd (FL
1992); Siemieniec v. Lutheran Gen. Hosp. (IL 1987); Bader v. Johnson (IN 2000); Arche v. United
States (KS 1990); Maine Health Security Act 2931; Reed v. Campagnolo (MD 1993); Burke v . Rivo
(MA 1990); Greco v. United States (NV 1995); Smith v. Cote (NH 1986); Berman v. Allan (NJ 1979),
Howard v. Lecher (NY 1976); Schirmer v. Mt. Auburn Obstetrics & Gynecologic Assoes. (OH 2003);
Schloss v Miriam Hospital (RI 1999); Jacobs v. Theimer (TX 1975); Naccash v. Burger (VA 1982);
James G. v. Caserta (WV 1985), Dumer v. St. Michael's Hospital (WI 1975).
care of the child.40 Typically, there is no offset for t

bestow on the parents, because it is assumed the ch
nomic damages for pain and suffering will differ by j
Theoretically, pecuniary damages depend on whet
viewed as a substitute for a healthy child. If this
case, "but for" the negligence the child would hav
wrongful birth case, "but for" the negligence the c
born. Given the cause of the birth defect, in some
assumed that an alternative healthy child would h
quent pregnancy. If the alternate state is a healthy
mental cost of the child should be included in dam
incremental cost of an impaired child will include t
expenses and the extraordinary cost of parental care g
Almost all courts that provide damages in wrongful
mental cost approach.43 Should damages hinge on
child that was impaired or whether any child the pa
impaired? The implicit assumption is that given th
parents would have aborted this child and proceeded
child pregnancy. Therefore, normal child care expendi
the tort. This is significantly different from dama
that may include normal child care costs, because t
is there would not be another child. This analogy, h
der all circumstances. If the birth of an unhealthy ch
netic misdiagnosis, then an alternative birth of a he
unlikely. The counter argument is that an adopted c
ered a substitute. However, since not all sterile cou
adopt, adoption is apparently not viewed as a perfec
It can not be said with any certainty that but for t
couple would have adopted. When the alternative sce
nity costs should include the entire cost of raising
have rejected this alternative scenario in damage ca
Awarding parents only extraordinary costs impli
be indifferent between having the present child af
traordinary costs and a non-impaired child. This is u
tion requires additional damages for emotional dis
However, only eight jurisdictions have expressly ap
eral damages) in wrongful birth.44 Without the consid
40For a decision that extends damages beyond the age of major

America at 413 (1995). In a typical wrongful death case damages
life expectancy. The relevant life expectancy in wrongful birth and
expectancy.
41Michael A. Mogill (1996), p. 829, and Lodato v. Kappy (NJ 2002)
42As an anonymous referee indicated this may be affected by tort
source rule.
43The exception is a case brought under the Federal Tort Claims Act that applied Alabama law. In
Robak v. United States (1981), court included normal child-rearing expenses in damages.
"The eight jurisdictions in which emotional damages are expressly included in court decisions
include Alabama, Florida, Indiana, Massachusetts, Nevada, New Jersey, Washington and Virginia.
Frasca 199
the calculation is
cluded, but incre
VII. Conclusion
Damages for negligent beginnings are determined on an ad hoc b

judicial fiat or statute that varies by jurisdiction and may vary over t
single jurisdiction. It has been argued that damages in wrongful bir
are problematical because they are founded on a faulty conception of
The harm is the birth of the child. The only relevant alternative for calc
damages is no child and non-existence. However, given our reticence
any life an injury, most courts search for an alternative basis to asses
This is motivated by the recognition that without damages there can b
terrence. Negligent beginnings is a unique area of the law where dete
rather than victim compensation, is the driving force for damages.
Some forensic economist may believe that the court's objectives are
vant in their analysis. They are not. The objectives frame the analysis
fect the courts' willingness to award particular damages. In wrongful
tion actions, the likelihood that an economic expert will play a signifi
in the proceedings will depend on the damage rule applied in the rele
risdiction. In those jurisdictions with damages limited to the cost of preg
and delivery, there is little need for a forensic economist. These expe
be easily tallied by a non-professional. However, in jurisdictions that a
net recovery rule or the full recovery rule, the forensic expert's analysis
an essential foundation for damages. The forensic economist will be
upon to estimate the present value of future child rearing costs.
Wrongful birth and wrongful life cases also require expert testimo
expert's role in these cases is to estimate the extraordinary costs relate
birth defect. The economist may work in conjunction with a life care
who will itemize the needed medical care. It should be the economist's role to
discount the itemized price list of future medical services to present value an
to ensure that usual and customary medical and child rearing costs are not
included. Therefore, the normal cost of raising a child is also implicitly consid-
ered in wrongful birth and wrongful life damages.
For torts involving negligent beginnings, medical advances may have an
uncertain effect on the number of actions involving healthy children from those
involving unhealthy children. Advances in the technology of birth control
abortion and sterilization will no doubt lead to fewer births of unwanted chil-
dren and, therefore, fewer actions for wrongful conception or wrongful birth.
On the other hand, there is a general feeling that medical advances in genetic
testing may make wrongful birth and life suits more common. As it becomes
possible to test for a larger number of genetic defects, doctors may be held ac-
countable for providing parents with more choices. These anticipated effects
are not yet supported or refuted by the available data.
45See Granchi (2002), p. 1279.
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Frasca 203
Appendix
Table 1
Actions for Negligent Beginnings by State
Frasca 205
* No case law
** Breach of contract permitted
*** No explicit statement on recovery rule

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National Association of Forensic Economics

Negligent Beginnings: Damages in Wrongful Conception, Wrongful Birth and Wrongful

Negligent Beginnings: Damages in Wrongful Conception,

This paper is concerned with the negligent beginnings of an unwan

'Department of Economics, University of Dayton, Dayton, OH.

in wrongful conception, wrongful pregnancy and wr

II. Definitions and Liability

Wrongful conception can result from an abortion or the birth of an un-

sate personal inju

A tort requires both negligence and damage; negligence without injury

III. Wrongful Birth and Life

It is generally believed that wrongful birth and life

10For example, see Lindsay Fortado (2004), p.l.

IV. Damages for Wrongful Pregnancy

The National Survey of Family Growth indicates

16Abma, et al. (1997), p. 13.

little more than

Birth and pregnancy damages

Post birth damages

21See Block (1985).

In addition to the incremental costs, the unintend

23Restatement (Second) of Torts 920 and Mogill (1996), p. 865.

damages for lost

25Mogill (1996), p. 854.

dans act. . . . Damages to a husband for loss of conso

In this view, the birth of the child is not the injury

1. genetic - to prevent birth of a defective child

It is likely that most sterilization procedures are

... where the parent sought sterilization in order to a

31These are Arizona, Connecticut, Maryland, Massachusetts and

ages, provided tha

The economist demographer's testimony in this case as to the costs of

In summary, wrongful pregnancy actions are recognized in almost all ju-

V. Damages for Wrongful Life

Ideally, perfect compensation makes the plaintiff

The special dama

There is no loss of earning capacity caused by the doctor in negli-

VI. Damages for Wrongful Birth

Eleven jurisdictions have rejected wrongful birth actions by court decision

care of the child.40 Typically, there is no offset for t

40For a decision that extends damages beyond the age of major

Damages for negligent beginnings are determined on an ad hoc b

45See Granchi (2002), p. 1279.

Strasser, Mark, "Y

Andaln v. Superior Court, 162 Cal. App. 3d 600 (1984)

Macomber v. Dillman, 505 A.2d 810 (ME 1986)

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