A Critique of the Motivational Analysis in Wrongful Conception Cases

Abstract

Most states now recognize a tort cause of action for wrongful conception, typically resulting from a failed sterilization. States differ; however; in determining whether damages should be awarded for child-rearing expenses and what factors juries can consider in setting such damage awards. This Note argues that one commonly used factor; the parents' motivation for selecting sterilization, is irrelevant and leads to inequitable results. Since the right to use contraception is constitutionally protected, the choice to sterilize in order to avoid financial burdens associated with childrearing should not be given preferential treatment to sterilizations motivated by concerns of genetic defects or for the mother's health.