Please send link suggestions (your
webpage or others) to me. I can only grow the webpage
with your help. General comment;The case in France; Links and
Newsarticle; Academic Article
General comment
As there are a lot of confusions around the different terms
here my definitions
1) Wrongful life means the the child sues the mother or other
people for being born.
2) Wrongful birth means the mother sues other people for being
burdened with a disabled child something she could have avoided.
In essence wrongful birth suits are genetic or prenatal
malpractice suits tort cases
3) Wrongful pregnancy means that you became pregnant or had a
child period without wanting it (this happens if a pregnancy
isn't detected or a sterilisation procedure fails the difference
between 1-3 in my eyes is that in 2) the child is damaging the
mother.
in 1) the child him/herself can say they were wronged and they
could at least theoretically say that based on their impairment
or based on the societal framework.
3) is like 2) but not based on disability. Interestingly if you
sue for 3) you will like in USA be compensated for the cost of
e.g. the sterilisation procedure but NOT for the cost this
addittional child will cost you till he/her is 18. But in 2) you
will get payments for the costs the kid cost you (very likely
lifetime costs). The rational for not giving child
related cost s to the mother in case 3) the non disabled child
is that having a child is so great that you can't get reimbursed
for it. but in 2) in the case of the disabled child that argument
of 3) is not used because having a disabled child is truly not a
good thing and so you the mother were harmed.
Beside that, there is case 4)
4) wrongful breech of warrenty means that a mother or child can
sue because a bad embryo was used in the IVF procedure in the
case preimplantation diagnostic is available. UK below opens
possibility that child can sue related to preimplantation
diagnostic
HFE Act1A; (1) (UK) In any case where
- a child carried by a women as the result of
the placing in her of an embryo or of sperm and eggs or her
artificial insemination is born disabled,
- the disability results from an act or
ommission in the course of the selection, or the keeping or use
outside the body, of the embryo carried by her or of the gametes
used to bring into the creation of the embryo, and
- a person is under this section answerable to
the child in respect of the act of omission, the child's
disabilities are to be regarded as damage resulting from the
wrongful act of that person and actionable accordingly at the
suit of the child.
(2) Subject to subsection (3)
below and the applied provision of section 1 of this Act, a
person (here referred to as "the defendant") is answerable to the
child if he was liable in tort to one or both of the parents (her
referred to a "the parent or parents concerned") or would, if
sued in due time, have been so; and it is no answer that there
could not have been such liability because the parent or parents
concerned suffered no actionable injury, if there was a breach of
legal duty which, accompanied by injury, would have given rise to
the liability.
(3) The defendant is not under
this section answerable to the child if at the time the embryo,
or thre sperm and eggs, are placed in the woman or the time of
her insemination (as the case may be) either or both of the
parents knew the risk of their child being born disabled (that is
to say, the particular risk created by the act or
omission).
The case in France:
1) The courts allowed wrongful birth and wrongful life
suits
2) The parlament just prohibited wrongful life not wrongful
birth suits
3) THat means the ultrasound technicians, the physician or whoever can still
be sued. It is just that the mother sues and not the kid and that the argument
is that the birth of the disabled child was damaging the life of the mother.
THe situation in regards to devaluation of a disabled child still exist. So
does the liability of the practicioner.
The case in the Netherlands
Links and Newsarticle
- Court
awards damages to disabled child for having been born BMJ 2003;326:784
( 12 April ) NEW My comment: It is interesting that the article
mentions people who demand a prohibition of wrongful life awards with the
argument that the acceptance of wrongful life awards may lead to defensive
medicine and pressure to use predictive prenatal diagnostics. If that is right
(and I think it is) the same argument and dynamic is true for wrongful birth
awards. But the same people who demand the prohibition of wrongful life awards
do not extend their demands to wrongful birth awards and with that in essence
they disvalidate their own argument used to demand a prohibition of wrongful
life awards. There are many other problems with the focus on wrongful life
awards as prohibitable without looking at wrongful birth awards in the same
way.
- CHAPTER FOURElliot
H. Gourvitz is the author of Domestic Torts in New Jersey, published by the
New Jersey Institute for Continuing Legal Education in 1994 with a supplement
in 1996. The book includes forms and sample complaints and may be purchased
from the New Jersey Institute for Continuing Legal Education, One Constitution
Square, New Brunswick, New Jersey 8101-1500. NEW
- Parents,
Not Child, May Seek Damages Over In-Vitro FertilizationFriday April 4,
2:01 am ET 2003A couple whose in-vitro child was born with cystic fibrosis
can seek punitive damages against a fertility treatment center and a hospital
for allegedly reckless conduct, a Manhattan judge has ruled. The ruling by
Supreme Court Justice Eileen C. Bransten, which was issued Tuesday, is one
of the first to apply New York's body of medical case law to the ethical and
legal questions raised by in-vitro fertilization. While the plaintiffs may
press most of the claims in their lawsuit, Bransten barred claims by the child
for "wrongful life" and by the parents for emotional distress related
to the birth.The plaintiffs, Josephine and Gerard Paretta, allege that their
doctors knew the couple's chosen egg donor was a carrier of cystic fibrosis,
yet failed to tell them. NEW
- WRONGFUL
LIFE / French doctors may strike
-
A Matter of Life and BreathApril 8, 2002
-
Business Ethics NewslineIs There a Right Not to be Born? by Rushworth
M. Kidder
- BBC
News | EUROPE | France rejects 'right not to be born'
- French government
acts to counter night not to be born - The Times of India
-
NATIONAL POST ONLINE | News storyWrongful life' ruling outrages ethicists
- BBC
News | EUROPE | Down's child paid for being born
- France debates right not to
be born | csmonitor.com
-
NATIONAL POST ONLINE | Search Results | Story 'Wrongful birth' case lands
in Supreme Court
- LITMAT English
- Lawyers in New Jersey: Firm News
Wrongful birth
- Disabled
child's case: Wrongful life?
Links to Legal decisions/legal briefs
- Cour
de cassation de France 2000 NEW
- n the
underlying complaint, Plaintiffs, Yvonne and Willie Smith (Mr. and Mrs. Smith),
have brought a medical malpractice suit against Dr. Saraf on behalf of themselves
and their minor son, Elijah Smith (Elijah). Plaintiffs allege that as a
result of Dr. Saraf's negligence in failing to ensure that Mrs. Smith received
particular prenatal tests while pregnant with Elijah, Plaintiffs were prevented
from discovering that Elijah would be born with a severe birth defect, and
thereby deprived of the choice to terminate the pregnancy. Mr. and Mrs. Smith
have asserted a claim against Dr. Saraf for wrongful birth, which, under
New Jersey law, is the parents' claim for the birth of a severely birth- defective
child.
- 'Wrongful
conception', 'wrongful birth' and 'wrongful life': the first South African
cases.
Academic Article
-
Entrez-PubMedDavis DS. 1997 genetic dilemmas and the
child right to an open future. HastingsCenter Report
;27(2):7-15
-
Entrez-PubMedde Angel Yaguez R 1999, The second
decision pronounced by the First Tribunal of the Supreme Court in
a case of wrongful birth (February 4, 1999). Does it
contradict the resolution of the decision pronounced on June 6,
1997 about the same problem]? Law Hum Genome Rev
1999 Jan-Jun;(10):117-55
-
Entrez-PubMedStrauss SA., 'Wrongful conception', 'wrongful
birth' and 'wrongful life': the first South African cases.
1996, Medical Law 15: 161-173;
-
Entrez-PubMedStrauss SA., An unusual case of wrongful
pregnancy: liability of doctor resulting from misrepresentation
1998, Medical Law 17: 7-11
-
Entrez-PubMedNurs Ethics 2000 May;7(3):250-61 A critique of a
'wrongful life' lawsuit in Korea. Um YR.
-
Entrez-PubMedWomen Health 1983 Spring;8(1):81-7 The concept
of wrongful life in the law. Kasper AS.
-
Entrez-PubMedJ Med Ethics 1987 Jun;13(2):69-73 Wrongful life:
some of the problems. Liu AN.