Statutory Prohibitions on Wrongful Birth Claims & Their Dangerous Effects on Parents

Abstract

Wrongful birth claims are negligence actions brought on behalf of children born with disabilities or genetic disorders that were not properly diagnosed before the child’s birth. The plaintiffs, typically the parents of the afflicted child, argue that without the defendant’s negligence, the parents would have had the opportunity to prevent the child’s birth and subsequent condition by choosing to terminate the pregnancy. A number of states have responded to the growing prevalence of wrongful birth claims by enacting legislation that bars plaintiffs from bringing wrongful birth actions. These statutes, however, pose a threat to the parental rights of disabled or terminally ill children, as they diminish abortion rights and bar parents from recovering the enormous medical and emotional damages of giving birth to the afflicted child. States should not prohibit this cause of action and, instead, the merits of these claims should be decided through the court system.