Wrongful birth lawsuits, where parents sue doctors or others for allowing an unwanted baby to be born, are becoming more common and raise ethical issues. (Getty mages/iStock File Photo)
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Anyone who has ever been shown a baby photo by a newly minted parent recognizes that there is only one acceptable response: fawning enthusiastic. While our society may disagree about when human life begins, once a child is born, a broad consensus exists that such a child is a positive good — a gift to be cherished.So how should the legal system handle cases in which medical negligence leads parents to conceive children they did not want? This is the dilemma facing courts as “wrongful birth” lawsuits advance in both the U.S. and Canada.Over the past month, Canadian media have reported on the cases of Jim and Jen, a couple suing Toronto’s Mount Sinai Hospital for wrongful pregnancy. Jen sought a tubal ligation at the time of the C-section delivery of her twins in 2011, but the hospital allegedly failed to perform one and she became pregnant the following year. The couple, who were not willing to terminate this unwanted pregnancy, is seeking $800,000 in damages — the cost of raising their unsought child to adulthood.A wrongful birth case of a different sort has arisen in the state of Georgia. A lesbian couple, Rene and Trayce Zelt, have been pursuing litigation against Xytex Corp. for allegedly falsely representing the medical and social histories of their sperm donor. According the Court of Appeals for the 11th Circuit, Xytex claim that “Donor #9623 had bachelor’s and master’s degrees and was working on a PhD, had an IQ of 160, had a ‘nearly perfect’ medical and mental health history, (and) had no criminal background.” In fact, the donor carried a diagnosis of schizophrenia, possessed no college degree, and had an extensive criminal history.The challenge for the law in these cases is to determine whether these couples have been damaged in a meaningful way. The Zelts argue that they have suffered an opportunity cost: they have been denied the right to choose a more preferable sperm donor. Jim and Jen claim that they already had three children and the financial worry of a fourth is an unjust burden. In contrast, many outside observers view a child, even under trying circumstances, as an inherently added value.The law in many jurisdictions is unwilling to weigh the benefits — arguably incomparable — of existing against not existing. At present, 12 states forbid wrongful birth suits while several limit such suits to very narrow circumstances. The majority permit such claims. A smaller number of jurisdictions allow “wrongful life” lawsuits, in which a child born as a result of medical negligence sues on his or her own behalf through a parent or guardian.Statutes prohibiting wrongful birth lawsuits are an exception to the general rules of malpractice litigation. In most malpractice cases, plaintiffs are awarded “expectation damages” — the value of the difference between what the doctor offers and what the medical intervention produced. So, if an orthopedist promises a patient a 100-per-cent functional hand and the functionality only improves to 50 per cent, the patient is entitled to recover for the 50 per cent of functionality that was never restored. Only in wrongful birth cases do courts and legislatures compare whether the couple is better off than when they started — rather than worse off than they had hoped to be.Wrongful birth awards are a necessary safeguard against dangerous physician conduct. In one particularly concerning Utah Supreme Court case, Wood v. University of Utah Medical Center (2002), the justices suggested that even if doctors intentionally lied to parents about the risk of genetic or congenital defects in order to trick them into not seeking an abortion, Utah law would allow no wrongful birth remedy. Re-conceptualizing these cases in terms of traditional malpractice law, rather than as part of a larger debate on reproductive rights, would likely deter negligent behaviour and improve the quality of obstetric care.Dr. Jacob Appel is director of ethics education in psychiatry at the Icahn School of Medicine at Mount Sinai in New York.Letters to the editor should be sent to firstname.lastname@example.org. The editorial pages editor is Gordon Clark, who can be reached at email@example.com.CLICK HERE to report a typo.Is there more to this story? We’d like to hear from you about this or any other stories you think we should know about. Email firstname.lastname@example.org.