Wrongful Birth Legal Issues: What Every Lawyer Needs to Know

If you are taking on a case involving a wrongful birth, there are things you need to know as a lawyer. Many higher courts have expanded the rights of parents to allow them to sue doctors whose medical negligence resulted in an unwanted birth or the birth of a child with significant defects.

What Is A Wrongful Birth?

It is the duty of all doctors to inform their patients about any complications or risks involved in any procedure they undergo, medication they take, and so forth. This also applies to complications involved in a pregnancy. If healthcare professionals fail to notify their patients about known risks or complications with a pregnancy, it may fall under the scope of medical malpractice.

Wrongful birth lawsuits are instigated when plaintiffs claim they didn’t have the medical information they needed to make an informed decision about whether to carry the fetus to term. This is most common in cases involving babies born with significant birth defects. In these cases the plaintiff’s attorney must prove that, had they been made aware of the missing medical information, they would likely have chosen not to carry the child to term.

As an example, imagine that a woman is in her first trimester and she makes a routine wellness visit to her doctor. The doctor fails to diagnose her with German measles, also known as Rubella. With no interventions, the woman carries her baby to term and the baby is born with congenital rubella syndrome (CRS). CRS causes heart malformations, deafness, organs that do not function properly, and intellectual defects.

In this example, the plaintiff could file a wrongful birth lawsuit claiming that had she learned of her condition and the potential risks to her child she would have terminated the pregnancy.

Wrongful Birth Versus Wrongful Life

Wrongful birth claims versus wrongful life claims can be viewed as opposite ends of the same spectrum.

Wrongful birth cases are claims brought by the parents of a child born with a disability or disease. During pregnancy – or even before conception – the parents were not informed that there was a high likelihood of an abnormal fetus. Subsequently, the child was born with defects that require very expensive and unique medical care.

Wrongful life suits are filed by a disabled child (perhaps through a parent or guardian) that claims a doctor has been negligent in some way. This might be through a missed diagnosis or failure to divulge important information regarding the health of the child to the parent(s). The plaintiff must prove that this negligence prevented the termination of a pregnancy. In failing to do so, the parent(s) and/or child are faced with exorbitant medical costs as well as the cost of special education, home care, and emotional suffering. 

Wrongful Birth Cases

Wrongful birth lawsuits are brought against the physician whose medical malpractice or negligence resulted in the unwanted birth of a child. Common wrongful birth cases involve situations where:

• A physician negligently performed a sterilization procedure that did not work.
• A physician failed to diagnose a pregnancy.
• A physician failed to inform parents that their child could be born with a birth defect in a timely enough fashion to allow the mother to terminate the pregnancy.

After the birth of a child, parents may be awarded financial compensation to help them deal with the financial burden of caring for a child with birth defects. The compensation can include:

• Tuition for special schools that cater to those with severe learning disabilities.
• Medical costs for ongoing treatment.
• Costs for at home medical care such as an at home nurse.

Additional compensation for wrongful birth cases can take the form of emotional or mental distress. Most legislation dictates that a compensation decision from the courts must be directly related to the legal risks associated with the pregnancy which were not explained to the individual, and subsequently directly related to the care resulting from the diagnosis.

States With Wrongful Birth Laws

Most states have laws that provide an avenue for parents to sue for negligence in the case of wrongful birth. However, there are more than a dozen that have laws protecting doctors from being sued. As recently as September 2020, the Kansas Supreme Court was hearing arguments against previous legislation which protected doctors against wrongful birth suits

Examples of Wrongful Birth Cases

Genetic Testing Errors

In 2015, the Washington appeals court awarded 50 million dollars in a genetic testing case where a couple carried rare genetic abnormalities and asked for tests before they gave birth to a child. The test results came back negative and yet their child was born with severe mental and physical disabilities from that genetic abnormality. The couple argued that the facilities testing procedures and standards were deficient and the jury assented. 

Burns v Hanson Wrongful Birth Lawsuit

In Burns v Hanson, a mother was able to recover damages for the cost of raising her healthy child and the emotional distress following a situation where the doctor told her she was sterile and then subsequently failed to diagnose her pregnancy.

In this Connecticut case, the plaintiff had multiple sclerosis and her doctor was both aware of this condition and aware that it was medically undesirable for her to procreate. Her doctor informed her that the radiation treatments for her multiple sclerosis had resulted in her sterility. Based on this information, the plaintiff and her husband stopped all birth control efforts. Despite claims that she was infertile, she became pregnant. Then, her doctor failed to diagnose that pregnancy until she was 20 weeks along.

Canesi vs Wilson Wrongful Birth Case

In Canesi v Wilson, another wrongful birth claim, a New Jersey mother had ingested a progestational agent while she was pregnant. Her child was born with bilateral limb reduction in addition to the death of one of the fetal twins. No physicians advised her that her fetus could suffer from limb reduction or other congenital abnormalities. Because her physician did not warn her that this could cause birth defects in an unborn child, she sued. The defendant claims that had she known this information, she would have terminated the pregnancy very early on. 

The Supreme Court determined that it was reasonable for a trained doctor to foresee that her child might have a severe birth defect. Failing to advise her of that risk and subsequently failing to give her the opportunity to make a decision based on that information amounted to neglect. She was awarded compensation for the special medical expenses associated with raising a child with this congenital issue as well as for the emotional trauma that the family suffered as a result.

Final Thoughts

Most courts recognize wrongful birth in some form or another but the circumstances for recovery and the legal limitations associated with compensation vary from one state to another. Being able to effectively link the birth defects to the medical malpractice itself, and being able to prove that the parent would have terminated the fetus had they been made aware of the relevant facts will bolster a case.