Public Health Law Map - Beta 5 - Medical and Public Health Law Site

might have been at fault, this guilt can rapidly turn to anger and a lawsuit. These
lawsuits often can be particularly acrimonious because the parents may be driven by an
emotional need to shift the guilt as much as by the potential monetary recovery.
There are two potential injured parties when a defective child is born: the parents or
guardian and the child. The parents’ lawsuit, which can be for negligence or for
wrongful birth, will claim for the extra cost of the medical and other services required
to treat their child’s condition. The traditional component of this claim is for these
expenses during the child’s minority, or the child’s lifetime, if the child will be
permanently incompetent. The more controversial claim is for the mental anguish of
having to observe the child’s suffering and for the disruption in family life. The courts
are suspicious of such claims, recognizing that even injured children provide an
emotional benefit to most parents.
The value of the parents’ claim for mental anguish will be based on the court’s
perception of the set-off of having the child. This set-off is greatest in the failure- of-
sterilization cases. Assuming that there was no medical injury to the mother or the
baby, the courts have generally found that the benefit of a healthy baby exceeds the
detriment of having an unwanted child. Conversely, parents are most likely to recover
when the child is badly damaged; an extreme case would be the birth, through the
failure of genetic counseling, of a child with Tay-Sachs disease.
The courts have been much more hostile to lawsuits brought by injured children. If the
child states a specific damage claim for an expense necessitated by the injury that is
not covered by the parents’ claim, then some courts will allow for this expense to be
recovered. These claims are seen as related to the cases in which the child is
affirmatively injured, such as the Rh sensitization cases. The controversy arises over
what are termed wrongful life claims. A wrongful life claim asserts that the child
would have been better off not having been born. The set- off and public policy issues
are very strongly against recovery on such claims:
Ultimately, the infant’s complaint is that he would be better off not to have
been born. Man, who knows nothing of death or nothingness, cannot possibly
know whether that is so. We must remember that the choice is not between
being born with health or being born without it; it is not claimed that the
defendants failed to do something to prevent or reduce the ravages of rubella.
Rather the choice is between a worldly existence and none at all.… To
recognize a right not to be born is to enter an area in which no one could find
his way. [Gleitman v. Cosgrove, 227 A.2d 689, 711 (1967); Berman v. Allan,
80 N.J. 421, 404 A.2d 8 (N.J. Jun 26, 1979); and Hummel v. Reiss, 129 N.J.
118, 608 A.2d 1341 (N.J. Jul 21, 1992).]
1. Preconception versus Postconception Remedies
Abortion creates a critical ethical and legal distinction between pre- and
postconception care. Abortion is ethically abhorrent to a substantial minority of
persons in the United States. (Some antiabortion groups also oppose the use of
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