In Washington state last December, a court awarded $50 million to a couple who said they would not have had their son had they known during the pregnancy about his severe genetic defect in what was termed a “wrongful birth.” In 2012, a Florida couple who said they would have aborted their child had they known he would have just one limb got $4.5 million. And an Oregon couple won a $3 million judgment because they didn't know their child would be born with Down syndrome.
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Lawsuits against doctors or other health care companies from parents claiming they would have terminated their pregnancies had they known the babies would be born with disabilities have become more lucrative. But for courts to recognize these claims makes a legal statement that certain individuals should not have been born, disability advocates argue.
Already 13 states have banned such lawsuits, and a bill was recently introduced in Congress to do the same nationally.
Mark Perriello, president of American Association of People with Disabilities, is concerned that the matter will get bogged down in partisan politics.
“My experience is that this issue has been hyper-partisan wrapped up in the abortion debate,” Perriello told TheBlaze. "People with disabilities do not see eye to eye with folks in the progressive community on this. But we will push to end wrongful birth lawsuits. Unfortunately, it is a partisan matter.”
He pointed to other laws in place to hold doctors or other medical practitioners accountable for not informing parents of their unborn children's potential disabilities.
“We are not talking about abortion. We are not talking about medical malpractice,” he said. “This is about everyone's right to live regardless of their ability.”
The American Association of People with Disabilities was one of 11 disability advocacy organizations that signed a letter in May 2012 protesting the American Civil Liberties Union support for such lawsuits.
Other notable “wrongful birth” lawsuits were in 2008, when a Massachusetts court awarded $8.22 million to a couple on the grounds they would have aborted a child had they known it had Down syndrome. The previous year, a Florida court awarded $23 million to a couple whose child was born with a genetic disorder.
These two suits were among the lawsuits cited by Rep. Steven Palazzo (R-Miss.), who late last month introduced a bill to ban wrongful birth lawsuits nationally.
“No child should ever have to hear they should have never been born,” Palazzo said in a statement. “I believe every child is a blessing, and should be treated as such. Wrongful birth cases are a waste of judicial resources and amount to nothing more than court-sanctioned child abuse.”
In general, to prove a wrongful birth claim, plaintiffs must either demonstrate that a doctor didn't diagnose a serious medical problem during the pregnancy; knew but didn't warn the patient; or deprived the parent of making an informed decision on whether to terminate the pregnancy.
According to the National Conference of State Legislatures, 13 states prohibit either wrongful birth or wrongful life lawsuits: Arizona, Idaho, Indiana, Kansas, Maine, Michigan, Minnesota, Missouri, North Dakota, Ohio, Oklahoma, South Dakota and Utah. In general, wrongful birth claims are brought on behalf of the parents, and wrongful life suits are brought on behalf of the child, said Heather Morton, the NCSL's fiscal affairs program head .
During a legislative debate in 2012 over whether to ban such lawsuits in Kansas, the ACLU warned that if made law, “a doctor who opposes abortion could decide to lie about the results" of a prenatal test.
“It would let doctors lie to women, intentionally depriving them of information that might lead to a decision to end the pregnancy or that might lead the woman and her partner to learn more so they are prepared to be the best parents they can be to their child," said Jenifer Dalven, director of the ACLU's Reproductive Freedom Project.
Two months later, 11 disability rights advocate group sent a letter to the ACLU, asserting that other laws and physician board rules hold doctors accountable from lying to their patients, which few of these suits resulted from.
“We are disappointed that an organization committed to and with a long history of protecting civil liberties and human rights, particularly the rights of traditionally marginalized or underrepresented communities, would support a policy that dehumanizes people with disabilities and devalues their lives,” the letter said.
“Wrongful birth and wrongful life lawsuits have as their basis the assumption that life with a disability is not worth living, which goes against the principles of the disability rights movement and the Americans with Disabilities Act,” the letter continued. “These actions require parents to publicly reject their child because of a disability. Only parents who convince the court that their child should never have been born are eligible to win a wrongful birth or wrongful life lawsuit.”
Groups advocating for such lawsuits were less than eager to talk about it.
An ACLU representative did not respond to phone and email inquiries from TheBlaze this week, nor did representatives from the American Association for Justice, which represents trial lawyers, or from Planned Parenthood.
While the suits are not prevalent, Perriello with the American Association of People with Disabilities said they can have the social impact of reinforcing certain stereotypes.
“As technology changes, the issue is that more and more people will be making the decisions if they want to have a child that has a disability in the womb,” Perriello said. “That inherent judgment shouldn't be made on wrong and preconceived notions about the quality of lives that people with disabilities will lead. Surveys have shown people with disabilities are just as satisfied and often more satisfied with their lives than people without disabilities.”