Wrongful Birth Legal Issues: What Every Lawyer Needs To Know

Updated January 23, 2024
9 min read
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 actions claim that had she learned of her condition and the potential risks to her child, she would have terminated the pregnancy.

Wrongful Birth vs. 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.

In the comparing of wrongful life and wrongful birth cases, wrongful life suits are filed by a disabled child (perhaps through a parent or guardian) who claims a doctor has been negligent in some way. This might be through a missed diagnosis or failure to divulge important information regarding the child's health 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 births 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 action. However, more than a dozen have laws protecting doctors from being sued. In September 2020, the Kansas Supreme Court was hearing arguments against previous legislation that protected doctors against wrongful birth suits.

Examples of Wrongful Birth Cases

Wrongful birth cases arise when parents claim that inadequate or incorrect medical advice led them to go on with a pregnancy that they would have otherwise terminated. Let’s look at famous 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 facility's testing procedures and standards were deficient, and the jury assented. 

Keel vs. Banach

One famous example of a wrongful birth case is the Keel vs. Banach case in Alabama in 1989. The parents of a child with severe genetic disorders sued their healthcare provider for failing to correctly diagnose the disorder during pregnancy, which they claimed would have led to the pregnancy being terminated had they been informed. The jury ruled in favor of the parents, setting a standard for future wrongful birth cases. This case was significant as it influenced many jurisdictions to recognize claims for wrongful birth. 


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. 

Effectively linking the birth defects to the medical malpractice itself and proving that the parent would have terminated the fetus had they been made aware of the relevant facts will bolster a case. Visit a reliable resource vendor, Lawrina, to get more information on the related issues.

Article by
Yevheniia Savchenko

Yevheniia Savchenko is a Product Content Manager at Lawrina. Yevheniia creates user interface copies for Lawrina products, writes release notes, and helps customers get the best user experience from all Lawrina products. Also, Yevheniia is in charge of creating helpful content on legal template pages (Lawrina Templates) and up-to-date information on US law (Lawrina Guides). In her spare time, Yevheniia takes up swimming, travels, and goes for a walk in her home city.

If you have any questions or suggestions regarding the product or UX content for Lawrina, feel free to contact Yevheniia directly at y.savchenko@lawrina.org or connect with her on LinkedIn.