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The Case to Ban Wrongful Birth Lawsuits
Joe Kral, M.A. | 17 October 2019
On May 28, 2019 the US Supreme Court denied review of Indiana’s law prohibiting discriminatory abortions.[i] As a result, Indiana’s law that prohibited the abortion of those unborn children based on race, disability, or gender was effectively overturned. It certainly signaled that the high court was not ready to address this particular limitation, at least not Indiana’s. Still, there are states that are pursuing such legislation, but if the US Supreme Court decision is any sort of indicator, it seems likely that these will be overturned as well if they are passed and signed into law. This certainly raises an important question—what can be done to help curb these types of abortions, especially in a day and age where it is more likely that a child that is diagnosed with Down syndrome is more likely to be aborted than born?[ii]
It is clear that with the legalization of abortion on demand because of Roe v. Wade and Doe v. Bolton, that society has been desensitized to the dignity of human life in general. Furthermore, it is also clear that it has given rise to the idea that some lives should not be born, particularly those who are disabled. A notion of utilitarian selfishness has arisen that asserts if a person is perceived as a burden because of a disability on another person then there is no corresponding duty to care for that disabled person. However, this is simply contrary to the very notion of justice itself. Classically defined, justice is that which is due to the other.[iii] So there is an element of selflessness when it comes to justice since it is about otherness and what is owed to the other. From here one begins to understand the very concept of rights. In fact the Latin term of ‘justice’ (ius) also means ‘right’. So rights imply duties, those responsibilities that one owes to the other. In this particular case, we can speak of the duty of parents to their child, specifically the duty to care for their child no matter what the health of the child is. In essence, the parent has the duty to care for their children that is proper to their condition. If the child is disabled then justice demands, as a duty, that the child is owed proper care by the parents. As mentioned above, justice is what is owed to the other; it focuses on the other, not the self. So justice demands that even the disabled are owed proper treatment. And it is here that one can see how a disabled child is seen to have a right to proper care.
It is here that the discussion of wrongful birth lawsuits can accurately be seen as a travesty of justice. The allowance, by many states, of these types of lawsuits sends a clear message that some lives are not meant to be born, that they should have been aborted before birth, hence the term “wrongful birth.” Morally speaking it is an absurdity to say that any birth is wrongful. Birth is the proper end to pregnancy, meaning that the end that the pregnant female body “seeks” is birth of the child. It is an injustice to willfully terminate the pregnancy by destroying the child. But wrongful birth suits assert the contrary. As a matter of law, one must question what this says to those in the disabled community. Does the law, in this instance, state that their lives are somehow not worth living? That they are somehow a burden on society? This certainly is the case. Wrongful birth suits, by the mere term, implies that a life was born that should not have been. This sends a dreadful message to those whose parents file suit suing others.
Furthermore, these suits are an injustice towards parents since the state basically asserts that parents should not be “burdened” with the care of their own child. The state is not giving parents their proper due which is to enforce the moral principle of parental duties under the law. The state has the duty to ensure that parents can properly know, especially in cases where they may not be informed ethically, of their parental duties towards their child. The ability of a parent to sue a doctor for “wrongful birth” merely tells parents that they should not be held responsible for the care of their child, but rather the doctor that caused the “harm” is responsible. This is why many doctors are overzealous in diagnosing potential genetic abnormalities. They simply do not want to be held responsible and sued. In essence, the unwritten law is directing behavior of doctors in such a way that it diminishes the respect for unborn human life, especially unborn human life that may be disabled.
Finally, these suits are an injustice for medical professionals. It violates the basic tenet of the Hippocratic Oath which is to do no harm. Taken literally, one would clearly assume that the oath is speaking of physical harm. But one needs to remember that in one of its earliest forms, it was also speaking of the responsibility of not doing physical harm (injury), but also to avoid any wrong-doing to the patient.[iv] This is a telling provision here, because it also seems to mean that harm is not just to be interpreted in the physical sense, but in the moral sense as well. Therefore, it is clear that the doctor has a duty to ensure that they do not violate the responsibilities of the parents in some way that will cause harm to them morally and to ensure that no harm befalls the unborn child who has a right to proper care from the parents.
At present, only a handful of states specifically prohibit wrongful birth suits.[v] It is time for more states, especially those states that have a history of passing solid pro-life legislation, to pass a prohibition on these types of lawsuits. Each human life has dignity and it is important that laws reflect that reality. States need to do more to ensure that every human life is welcomed and ensure that the notion of “wrongful birth” becomes an absurdity. While it may be a while for states to pass Prenatal Non-Discrimination Acts because of the recent US Supreme Court decision, it is certainly possible to pass this legislation which also helps recognize the dignity of the disabled.
[i] See https://lozierinstitute.org/scotus-upholds-indiana-fetal-remains-law-denies-cert-on-discriminatory-abortion-ban/
[ii] See https://lozierinstitute.org/improving-joyful-lives-societys-response-to-difference-and-disability/.
[iii] See Aquinas, Thomas, Summa Theologica, II-II, Q. 58, A. 1.
[iv] See https://www.loebclassics.com/view/hippocrates_cos-oath/1923/pb_LCL147.299.xml;jsessionid=4C2D4E4ABDB681AEA27F3E02CFB4491B.
[v] The states that specifically prohibit wrongful birth suits are: Idaho, Utah, South Dakota, Minnesota, Oklahoma, Arkansas, Missouri, Kentucky, Michigan, Pennsylvania, North Carolina, and Georgia.
Joe Kral, M.A., President of the Society of St. Sebastian and Editor-in-Chief of the Journal of Bioethics in Law & Culture Quarterly