Wrongful Birth

A MEDICAL MALPRACTICE claim brought by the parents of a child born with birth defects, alleging that negligent treatment or advice deprived them of the opportunity to avoid conception or terminate the pregnancy.

A wrongful birth action is conceptually similar to a WRONGFUL LIFE action. In a wrongful birth action, parents seek damages for a child born with birth defects. The claim for damages is based on the cost to parents of raising an unexpectedly defective child. In a wrongful life action, the child seeks damages for being born with a birth defect rather than not being born.

A wrongful birth action was first recognized in Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975). The case involved an action by the parents of a child born with defects caused by the mother contracting rubella in her first month of pregnancy. The claim was that the defendant was negligent in failing to diagnose the rubella in the mother. The Texas Supreme Court allowed damages, but only for expenses reasonably necessary for the care and treatment of the child's impairment. The parents were not awarded any noneconomic damages such as damages for pain and suffering.

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. In addition, some courts were reluctant to award damages, ruling that it was impossible to weigh the economic and emotional costs of raising an impaired child against the intangible joys of parenthood.

Since the mid-1970s, however, more than twenty states have recognized wrongful birth actions that enable parents to collect some or all of their CHILD CARE expenses if they can prove NEGLIGENCE. With improved genetic testing, medical providers can routinely determine early in pregnancy the presence of certain birth defects in the fetus. This imposes on medical providers the duty to order the correct tests and to properly diagnose the results.