173592 (M) MRT 2124

The Rights of the Unborn Child

Wrongful Birth: Wrongful Death

Disability and Wrongful Birth

Attard Sylvana

ID: 173592 (M)

University of Malta

Bachelor of Arts in Philosophy and Psychology

1st year

Course: The Rights of the Unborn Child

Lecturer: Fr. Raymond Zammit

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Introduction

Wrongful birth and wrongful death are two legal causes of action which are
categorised under Tort law. A tort is a wrong constituting of a violation of a civil duty owed
to another person. Any individual who has been the victim of a tortuous act can bring forth a
lawsuit for tort. That person would then have a right to claim “damages” which usually
consist of monetary compensations from the person responsible for causing the tortuous act.
A legal harm in tort law refers to violations of property or of constitutional rights, emotional
damage, and economic harms among others.

Wrongful Birth

Wrongful birth is a legal cause of action in some common law countries in which the
parents of a congenitally diseased child claim that their doctor failed to properly warn of their
risk of conceiving or giving birth to a child with serious genetic or congenital abnormalities.1
The mother of the child or any other related relatives, being the plaintiffs sue the defendant
who in most cases is the patient’s doctor, for having prevented them from making a decision
as to whether to have or not to have the child. The plaintiffs become ‘burdened’ with a
disabled child, which is something that they could have avoided. Wrongful birth suits are in
essence either genetic or medical malpractice suits tort cases.

For a wrongful birth claim to be made, the plaintiff, that is the person putting forward
the claim, must have an existing relationship with the defendant, that is the doctor. This
means that throughout the pregnancy the mother of the child would have been given a
medical diagnosis by the doctor. The doctor must fail to disclose to the parents information
about the genetic or congenital disorder that their unborn child has or might develop if they
decided to conceive. If so, the plaintiffs must be able to show proof or have a medical witness
to give testimony with regards to the standard of care that the doctor had shown when
performing the said diagnosis. An expert medical witness is needed to evaluate the doctor’s
actions, as this cannot be done by the jury who usually would not have the necessary medical
knowledge to evaluate such matters. Although the doctor has an obligation towards the
prospective parents to disclose to them the risks of conceiving a child with a genetic
condition, the doctor need not inform them of all the risks or suggest for them to perform all

1
Wrongful Birth Action, Black's Law Dictionary (3rd ed. 2006)

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the necessary tests which would eventually result in whether the child would have the
inherited the genetic condition or not. The doctor’s actions are described as being negligent
when he fails to inform the prospective parents of the birth defects of their child, which could
easily be detected during the prenatal screenings. The doctor owes this duty to the parents.
Due to the doctor’s negligence, the plaintiffs would in turn suffer harm. Such harms consist
of having a child with abnormalities, which would then bring with it further emotional,
economical and maybe even psychological problems, and a missed chance of terminating the
pregnancy.

The plaintiffs, in the past used to bring forth the idea that if the doctor or the
defendant had been more responsible and less careless, the child would not have been born
with a genetic condition. The doctor would then defend himself by arguing that even if
throughout the pregnancy he or she would have failed to detect any abnormal development or
genetic disorder in the foetus, he would still not be responsible for the parents to have had a
genetic disorder or for the foetus to have developed or inherited that disorder. Once the
genetic disorder occurs, the doctor is not able to make it inevitable or even more be able to
correct the occurred mutation. What results in the conception of a disabled child is the
combination of the parents’ affected genes and their decision to conceive. Whether it was
intended; meaning that the parents knew of the risks or whether they were blind to the fact
that they could have a child with abnormalities, the doctor should not really be the one to be
held responsible, as the doctor did not intervene with the genetic makeup of either the parents
or the foetus.

However, lately in the recent past, plaintiffs were able to prove the cause of wrongful
birth by arguing that due to the defendant’s negligent actions they were denied the
opportunity to decide fully as to whether they should conceive the child which would have
inherited the genetic disorder or whether they would have terminated the pregnancy by
aborting the foetus. Still, the plaintiffs’ claim that they would not have had an abnormal child
is in some ways speculative. The decision whether or not to conceive given the risk of
bearing an abnormal child would likely be difficult and emotional, with an unpredictable
outcome, as would the decision to abort an abnormal foetus. Additionally, some defendants
have argued that the tort is subject to fraudulent claims, as proof of the claim that the
plaintiffs would have aborted an abnormal foetus would often come in the form of the
plaintiff’s retrospective and subjective testimony. 2
2
http://en.wikipedia.org/wiki/Wrongful_birth#cite_note-8 . Retrieved 16-05-2011

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When the plaintiffs succeed in proving that the doctor’s negligence caused them to
have an abnormal, disabled child with a genetic condition, the courts usually offer some sort
of compensation. Today courts, give monetary compensation which would cover most of the
costs required for the medical care needed by the disabled child. Other courts may even
provide the plaintiffs with compensation for emotional harm, and the pain endured by the
mother during the birth of her genetically conditioned child. There happens to be some courts
who do not even acknowledge wrongful birth suits.

Various debates arise regarding whether cases of wrongful birth suits should be or
should not be recognised by the courts.

Those who argue that wrongful birth suits should not be recognised, argue so because
according to them this would eventually increase the unethical performance of terminating a
pregnancy by performing an abortion. Any doctors who happen not to disclose any
information about the defects of the foetus to the prospective parents and who do not
recommend diagnostic tests to point out the said defects face a great risk of being sued. To
avoid being sued therefore the doctors inform and make the parents fully aware of their
foetus’ abnormal conditions. Most parents who are not ready to put up with such
responsibilities of raising a disabled child, usually as an alternative they decide to abort the
foetus and be rid of such responsibilities which seem to be more than they could handle.
Additionally, the rate at which doctors misdiagnose a foetus with a congenital disease would
also increase if wrongful birth suits were to be acknowledged. Such misdiagnoses are due to a
precaution which the doctors take, to avoid being sued for missing out on detecting an
abnormality in the developing foetus. This unfortunately results in abortions of fully healthy
foetuses. Moreover plaintiffs claim that to have and to raise a child with a disability is far less
pleasant and worthwhile, and more burdensome than to have a healthy normal child or to not
have any children at all. This claim discourages other persons who are themselves carriers of
genetic disorders from procreating children.

The reasons put forth in favour of wrongful birth suits to be recognised are first and
foremost the fact that the parents should have the right to choose themselves not to procreate
due to the chance of having a disabled child. Therefore it is the doctor’s duty to bring to light
any results which indicate that if the parents were to conceive they would reproduce a foetus
with a congenital disorder. The doctors should respect their decision not to procreate in this
case and not lead them on in believing that they are able to reproduce a normal foetus. If the

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doctor fails to do this, then he or she should be held responsible for his or her negligent
actions. Secondly due to negligence from the doctor’s part, upon the birth of the disabled
child, the plaintiffs would be overcome with a tremendous distressful shock as the
expectations of having a healthy baby are crushed at once. Some wrongful birth suits
compensate for the plaintiffs’ distressful emotional problems caused by the shock of bearing
a child with abnormalities. Thirdly, in states and countries where abortion is legal, it is seen
as the right of the mother or of the parents to be able to perform an abortion, if the genetically
conditioned foetus is not desired. Failure to recognise a wrongful birth cause of action would
frustrate that right.3

Most wrongful birth suits had little chance of succeeding before the decriminalization
of abortion by the U.S. Supreme Court in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L.
Ed. 2d 147 (1973), since the parents of a child with birth defects could not argue that they
would have had an abortion had they known of the defect. 4 Most courts also claimed that
monetary compensations are not to be rewarded for emotional distress and or to raise the
disabled child, as these cannot be the price which would eventually compensate for the
denied, easy and unburdened parenthood.

Since the 1970’s most states and countries acknowledged wrongful birth suits which
were grounded in proofs of negligent actions. The late successes in the advances of genetic
testing provided doctors with the necessary tools in making a proper and accurate diagnosis
of the unborn foetus. These new advances provided for any genetic disorders to be detected
very early in the foetal development.

Wrongful Birth Cases

A wrongful birth action was first recognized in Jacobs v. Theimer, 519 S.W.2d 846
(Tex. 1975).5 This case was one in which during the first month of her pregnancy, the mother
contracted rubella or what is more commonly known as German measles. This resulted in her
giving birth to a child with defects. In this particular case the doctor responsible of the
pregnant patient failed to diagnose and inform her that she had contracted rubella. ‘Damages’
3
http://en.wikipedia.org/wiki/Wrongful_birth#cite_note-8. Retrieved 16-05-2011

4
The Free Dictionary by Farlex – Legal Dictionary. Retrieved 16-05-2011

5
The Free Dictionary by Farlex – Legal Dictionary. Retrieved 16-05-2011

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or compensations where given however they were worth only to cover the medical care and
treatment of the defected child. The parents were not compensated for any physical pain or
suffering from emotional distress.

In 1989 there was another case of Munro versus Regents of the University of California. The
doctor failed to recommend the plaintiffs to do a Tay-Sachs test. Tay–Sachs disease is an
autosomal recessive genetic disorder. In its most common variant, known as infantile Tay–
Sachs disease, it causes a relentless deterioration of mental and physical abilities that
6
commences around six months of age and usually results in death by the age of four. The
doctor was not obliged to order for his patient and her husband the test, as he had no reason to
suspect that his patients had the disease. The risk of Tay-Sachs among the general population
was between 1 in 200 and 1 in 300, and when the Tay-Sachs test was "generally useless" for
the vast majority of patients.7

In another case of Keel versus Banach, the plaintiffs were a man and his pregnant wife who
wanted to accost to anything avoid from having a child with a genetic condition. The man
had had a previous child, who was born with a defected spinal cord and other deficiencies
which were hereditary. The man was therefore at a high risk of transmitting these
abnormalities every time he and his wife procreated. The defendant who happened to be an
obstetrician performed a considerable amount of prenatal screenings, and yet he was unable
to diagnose any abnormalities in the developing foetus. Upon birth, the baby was born with a
variety of abnormalities, which required immediate surgery. Unfortunately the child survived
until the age of six. The parents eventually sued the obstetrician. The court ruled,

"…the parents of a congenitally defective child may maintain

an action for its wrongful birth if the birth was the result of the
negligent failure of the attending physician to discover and
inform them of the existence of foetal defects." 8

6
"Tay-Sachs Disease Information Page". National Institute of Neurological Disorders and Stroke. February 14,
2007. http://www.ninds.nih.gov/disorders/taysachs/taysachs.htm. Retrieved 2007-05-10
7
Munro v. Regents of the University of California, 263 Cal.Rptr. 878, 882 (Cal.App. 1989). at 884 - 85.

8
Keel, 624 So.2d at 1029.

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The plaintiffs were compensated in expense of the doctor’s negligent actions, to

recover the money spent in medical treatments, for the physical pain the mother experienced
during the birth of her child and for the emotional and psychological suffering.

Wrongful Death

Wrongful death is another legal cause of action which claims that the victim is killed
due to the negligent actions of another person which is being sued and that the relatives of
the victim are owed monetary compensations as a result of the wrongful actions of the
defendant.

Originally the wrongful death claim was not recognised based on the argument that a
wrongful death claim dies, upon the death of the victim and therefore there was no alternative
way to redeem his or her sufferings. Therefore the relatives of the victim were not allowed to
claim compensations from the person who had caused the death of the victim. Over the years,
wrongful death claims were becoming recognised in most states and countries. In expense
for the victim’s death, compensations were only given to persons who had suffered some
kind of damage from the death of the victim, whether that damage was emotional,
psychological or any other. However recently all states in America and several other
countries have acknowledged some form of wrongful death claim.

Although the “wrongful claim statutes” vary from one another in different states and
countries, they all have in common elements which constitute an important part of the
wrongful death claim. That is, in all statutes, firstly the death of the victim was brought about
by the actions of the defendant, secondly the defendant was negligent in his actions and
completely responsible for the victim’s death, thirdly, there are surviving persons related to
the victim and lastly monetary compensations are owed to the dead victim’s relatives to
redeem the damages caused by the defendant on the victim.

States and countries vary when it comes to the recognition of a wrongful death cause
of action. Some recognize it and offer compensations, while others have an extent to how far
they come up to recognize such a claim, for example that the child who had suffered injuries
due to the negligent actions of another must be born alive and then dies after birth. Then

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there are other states and countries that do not acknowledge a wrongful death claim at all.
Therefore usually the parents cannot get anything back in compensation for the death of their
unborn child not even if they had suffered any emotional or mental injuries.

Wrongful Death Cases

There are a variety of cases which bring about wrongful death suits. Mostly they are
due to the negligence in someone’s actions that is the person being sued. When wrongful
death lawsuits favour the persons putting forward the claim, who are usually closely related
relatives of the victim, they become eligible to receive some kind of compensation for the
death of the victim. In some wrongful death cases because of the defendant’s injurious and
highly negligent actions, the defendant may be ordered by the court to pay punitive damages.
Punitive damages are intended to punish the offender and deter others from similar conduct
in the future.9

Abortion: The Solution to avoid being burdened with a Disabled Child?

When a mother or any other closely related relatives file a wrongful birth lawsuit they
claim as mentioned earlier that the plaintiffs were denied by the defendant’s negligent actions
the chance to abort the disabled child. This shows that it is acceptable for the plaintiffs to sue
a defendant who happened not to disclose information about the alarming health of the foetus
and who did not cause the genetic mutations whether they occurred in the parents or in the
foetus, however it is acceptable for the plaintiffs whether they’d be the parents of the
abnormal foetus or any other close relatives to suggest or decide to undergo an abortion to
abort the foetus who will eventually be born disabled. How come it is acceptable to take a
life rather than give birth to a child who although is not perfectly normal, he or she still own
the right to live?

In 1993 there happened to be a case where Dr. James Delahunty found a problem in
the developing foetus of twenty-one weeks, whose mother was Deborah Campano. The
problem happened to be a thickened band of skin around the region of the neck of the unborn
9
http://www.onlinelawyersource.com/personal_injury/wrongful_death/cases.html. Retrieved 16-05-2011

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child. This was clearly a sign of Down’s syndrome. In court, Dr. Delahunty claimed that he
had recommended the mother of the child a prenatal test to diagnose any chromosomal
abnormalities and fetal infections; however the mother insisted upon the fact that he had not.
Five years later, Dr. Delahunty was facing a charge of 1.85 million US dollars and a high
chance of having to compensate the mother for his negligent actions in court. Dr. Delahuntly
said that;

"Some women want to kill their children because they are

handicapped… If genetic tests give them the wrong results,
they blame the doctor. I was blamed."10

There has been an upsurge over the years of patients suing their obstetricians,
claiming that they would have chosen to undergo abortion if they had been informed prior to
birth that the prenatal scans showe any abnormalities or disorders in the developing foetus.

“…doctors are sued for not weeding out the 'unfit’.”11

Clark Forsythe, president of ‘Americans United for Life’ which is based in Chicago
said that undergoing an abortion when there’s a chance of being pregnant with a child who
has a genetic condition is antithetical to what the states and the nation are doing in promoting
the lives and lifestyles of disabled people. When the parents are dissatisfied with the foetus
developing in the womb the first resort which they turn to is abortion. The National Down
Syndrome Congress claimed that each time parents asked for compensations to redeem the
fact that they were mislead into thinking that they would have a normal child; it leads one to
believe that the life of a disabled child is less valuable than having no life at all. It almost
leads one to assume that the mother would be doing the disabled child a great favour in
aborting him or her, rather than giving the child life, which although it would a tough one, it
still would count.

Mrs. Campano who divorced her husband Mr. Michael Imbergamo after the birth of
their child, who suffered Down’s syndrome, said that Dr. Delahuntly put his views in favour
of the right to life before the well-being of Mrs. Campano and her unborn child. They also
said that Dr. Delahuntly did not recommend to her any tests which would assure that the

10
The Washington Times, August 4, 1999, Copyright 1999 News World Communications, Inc.

11
Clark Forsthye, The Washington Times, August 4, 1999, Copyright 1999 News World Communications, Inc.

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foetus is completely healthy and developing normally. However Dr. Delahuntly insisted that
he had offered Mrs. Campano the pre-natal test and she was the one who had rejected it in
the first place because it costed a lot.

Mrs. Campano sobbed she loved her "beautiful little boy," but she still testified she
would have aborted him if she knew he was disabled. The jury found Dr. Delahunty negligent
for "failing to recognize, appreciate and discuss the results of tests, particularly ultrasound."12

This leads us to ask an important question. Are not the disabled also persons with
rights especially the right to life, like any other human beings? Did Mrs. Campano’s child
had the right to be born alive just like his mother had to right to live her own life, despite his
condition? Disabled people also have the right to live therefore one cannot just decide that
because of their ‘abnormalities’ or because their parents where unfit to raise a child with such
conditions, then that child should be killed or rather aborted.

Wrongful Death and Abortion: the death of an Unborn Child

The Supreme Court of Montana on March 17, 1994 advocated that a wrongful death
claim was only recognised if the foetus was stillborn. On the other hand the Courts of
Criminal Appeals of Oklahoma in January 24, 1994 declared that if the foetus was harmed
prior to birth and if at the time of the injury the foetus was viable than a wrongful death
lawsuit would be recognised because the viable foetus is a human being with his or her own
rights. Both of these courts declared that their holdings would not affect a woman's right to
choose a lawful abortion based on her constitutional right to privacy.13 

It does not make sense for an abortion of a foetus to be declared as legal and
acceptable while in the mean time, the wrongful death act of the same child by another
person other than the mother of the unborn child is unacceptable. This suggests that the
mother of an aborted foetus had the right to kill the said foetus.

12
The Washington Times,  August 4, 1999, Copyright  1999 News World Communications, Inc.

13
Murphy S. Klasing, The Death of an Unborn Child: Jurisprudential Inconsistencies in Wrongful Death,
Criminal Homicide, and Abortion Cases,1995, 22 Pepp. L. Rev. 933, Copyright (c) 1995 Pepperdine University,
School of Law, Pepperdine Law Review.

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How come do we possess the right to kill a foetus? Since when has it become legal to
kill another person? Some may hold the position that a foetus can only be aborted unless he is
labeled viable. But what does one mean by viability and when does a foetus become viable?
Does it occur upon conception, birth, or at some stage during the pregnancy?

Conclusion: Personhood – When it all starts

"…life begins at conception."14

So it is said by the pro-life movement, who believe that life and the person start from
the moment that the sperm from the father fuses with the egg of the mother, thus fertilizing it
and producing a new life, a new zygote with the potential to develop as a person or into a
person. Some however may argue that a potential person is not the same as an actual
functioning person. Pro-life movement attacks this argument by arguing that an embryo
reaches the form of a potential person in little time between eight to twelve weeks and they
emphasize on the point that a foetus has high sensitivity, is conscious and is able to feel pain.

Those who believe that an embryo is not viable up to a certain point during the
pregnancy claim that rights of personhood cannot be given to someone who is not yet a
person. However those who are in favour of the right to life for the unborn, may say that
since the development of a zygote into a person cannot naturally be interrupted then no one
has the right to intervene with that natural process.

Those who believe that a person develops at some stage during the pregnancy believe
that the foetus has become viable. By viability of the foetus, it is meant that the foetus is
capable of living outside of the mother by breathing and circulating blood on his or her own
and be in possession of a strong immune system which enables the child to fight off diseases
and germs on his or her own. However the problem is that there is no clear or particular stage
at which the foetus reaches such stage during the pregnancy.

Biologically upon the fusion of gametes, a new system begins. The new system is not
simply the sum of the two subsystems, but rather a combined system which, following the
two subsystems’ loss of individalisation and autonomy and given the necessary conditions
14
http://www.huppi.com/kangaroo/L-personhood.htm . Retrieved 16-05-2011

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starts to function as a ‘new unit’, intrinsically determined to reach its specific final form. 15
The first reason is that the “‘new unit’” has its own genome which specifies the individuality
of the foetus. Secondly the embryo undergoes a series of successive steps until it achieves its
final form. Throughout the whole process of development the foetus maintains its
individuality and identity. This provides the basis for the claim that a new human cell i.e. the
zygote is an individual human being from the start. Therefore it must be treated and protected
from any harm and must be respected like any other human being.

Those who argue that a zygote has the potential to become a person but it is not yet an
actual person believe that the embryo acquires the status of a person at some time during the
nine months before the foetus is born. For some, a foetus becomes a person when he or she
becomes self-conscious and when the foetus holds and be able to express desires.

Then again, there are those who believe that to be a human being is to be a person.
The concept of a person cannot be determined by, or restricted to, a stage – a state – of self
consciousness. Rights are not to be founded on self-conscious desires, and so they are not
necessarily connected with states of consciousness.16 The zygote has a potential to develop
into a human being whether it is normal or else disabled, with a personality of its own and
capacity of being someone; being a person. In the end that person will somehow would have
made an imprint on the life of the world that he or she will be born into. The right not to be
killed among other rights is based on what constitutes of human beings and not on a
particular stage of self conscious desire. Therefore the most valuable thing is what human
beings are and not what they can achieve. What matters is how they exercise their potential
in achieving. Every cell that has a potential to develop into a human being even if something
goes wrong during the developing process, already shows a capacity of achieving.

I personally believe that life should be cherished and respected in all its forms,
therefore abortion should not be the solution to problems of bearing a child, whether it would
be normal or disabled. Every potential cell, or a highly complex form of a child, should be

15
Emmanuel Aguis, Problems in Applied Ethics, Chapter 1: The identity and moral status of the human embryo,
pgs 8-9
16
Emmanuel Aguis, Problems in Applied Ethics, Chapter 1: The identity and moral status of the human embryo,
pg 11.

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allowed its right to continue to develop naturally. The only desire expressed by the unborn
child and which should be recognised is its potential to be born.

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