The Arizona Senate has overwhelmingly passed the so-called “wrongful birth” bill — a piece of legislation that not only strips citizens of core torts protections but is based on a legal mythology of abusive litigation. The law would prevent lawsuits against doctors who withhold information on health problems of a fetus — even withholding the information intentionally.
Sponsor Sen. Nancy Barto (R-Phoenix) explained that doctors have lawsuits if they withhold information that might have led the mother to abort the child. She and others pushed through S 1359, which states:
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 12, chapter 6, article 12, Arizona Revised Statutes, is amended by adding section 12-718, to read:
12-718. Civil liability; wrongful birth, life or conception claims; application
A. A person is not liable for damages in any civil action for wrongful birth based on a claim that, but for an act or omission of the defendant, a child or children would not or should not have been born.
B. A person is not liable for damages in any civil action for wrongful life based on a claim that, but for an act or omission of the defendant, the person bringing the action would not or should not have been born.
C. This section applies to any claim regardless of whether the child is born healthy or with a birth defect or other adverse medical condition.
D. This section does not apply to any civil action for damages for an intentional or grossly negligent act or omission, including an act or omission that violates a criminal law.
Thus, absent an “intentional or grossly negligent act or omission” citizens would be barred. However, this would not presumably include “an act or omission” in withholding information. That leads to the question of a protected “omission” that is alleged to be an exempted “omission.” Thinking of that Zen-like question can lead to insanity. Of course, many would suggest that an intentional omission of a critical birth defect is per se grossly negligent.
Putting aside the circular language, the question is why such legislation is needed. First, there is no record of a flood of wrongful life lawsuits. Pro-life websites speak of these lawsuits as if they are common:
Wrongful birth and wrongful life lawsuits are just plain wrong.
The wrongful birth suit is brought by the parents of a sick or disabled child against a physician that, the parents say, was negligent. The wrongful birth lawsuit does not say that the doctor caused the disease or disability, which would be a valid reason to sue. Instead the wrongful birth lawsuit claims the that doctor failed to inform the parents of the illness or disability of the child and that had they known, they would have aborted their child. In other words, the parents are saying we wish our child was dead. Because he or she is not, the doctor has to pay.
The parents often use the excuse that they love their child; they are simply suing to acquire funds to care for their sick or disabled offspring. But to get those funds they have to insist that, had they known, they would have killed that very same child.
The few cases that are brought on this basis face considerable challenges with a jury, which (like most people) are not inclined to view such claims favorably. One successful case was based in Oregon. Ariel and Deborah Levy had gone to their doctors for testing for birth defects, including Down syndrome. The jury found five instances of negligence on behalf of Legacy Health’s negligence, including an assurance to the parents that the baby had a normal chromosomal profile. The baby in fact showed indications of Down syndrome and was born with the defect. The couple was awarded $2.9 million on Friday for the care of the baby.
While these lawsuits are called wrongful birth or wrongful life, the terms carry a desired pejorative meaning. In reality, these are fairly straight-forward torts claims. While some may object to the notion of abortion or aborting due to detection of defects, it is a lawful practice. These doctors promised to perform tests to determine defects and did so with repeated acts of negligence. Negligent acts generally have both harm and damages. A similar case in Florida in 2011 resulted in an award of $4.5 million in a wrongful birth lawsuit when a boy was born with one leg and no arms.
Nine states — Pennsylvania, North Dakota, South Dakota, Utah, Idaho, Indiana, Missouri, Minnesota and North Carolina — currently have such laws. In Pennsylvania, the law was upheld on appeal. The Pennsylvania law in question was worded slightly differently:
There shall be no cause of action or award of damages on behalf of any person based on a claim that, but for an act or omission of the defendant, a person once conceived would not or should not have been born. Nothing contained in this subsection shall be construed to prohibit any cause of action or award of damages for the wrongful death of a woman, or on account of physical injury suffered by a woman or a child, as a result of an attempted abortion. Nothing contained in this subsection shall be construed to provide a defense against any proceeding charging a health care practitioner with intentional misrepresentation under the act of October 5, 1978 (P.L.1109, No.261), known as the Osteopathic Medical Practice Act, the act of December 20, 1985 (P.L.457, No.112), known as the Medical Practice Act of 1985, or any other act regulating the professional practices of health care practitioners.
(b) Wrongful life. –There shall be no cause of action on behalf of any person based on a claim of that person that, but for an act or omission of the defendant, the person would not have been conceived or, once conceived, would or should have been aborted.
(c) Conception. –A person shall be deemed to be conceived at the moment of fertilization.
The trial court dismissed the action under the statute and, after the dismissal was affirmed by the Pennsylvania Supreme Court, the United States Supreme Court denied review. See generally Jenkins v. Hospital of the Medical College of Pennsylvania, 445 Pa. Super. 427; 665 A.2d 1198 (1995); Jenkins v. Hospital of the Medical College of Pennsylvania 634 A.2d 1099, 1103 (1993)
While states generally have authority to curtail tort liability, most legislators have the wisdom to allow the common law to define and refine such causes of action. The greatest defense for these companies and doctors is that they acted reasonably and did not offer negligent services.
The bill passed 20-9 in the Arizona Senate. It will now go to the House, which will hopefully show greater consideration for the implications of such legislation.