The “Wrongful Life” Debate

footprintsAs briefly mentioned in a prior post and discussed in a Connecticut opinion released last Friday, courts continue struggling to apply standard negligence principles in the context of genetic science, especially in the area of “wrongful life.” In a typical wrongful life case, a physician or geneticist fails to diagnose a severe genetic problem in a fetus. The problem is typically so severe that the parents allege that they would have terminated the pregnancy if they had known of the problem. When the child—or a parent acting on the child’s behalf—brings a claim in court alleging that the physician or geneticist was negligent in failing to diagnose the problem, it is referred to as a “wrongful life” claim.

In tort law, damages are generally compensatory in nature—they are awarded with the goal of returning the injured party to the position he or she held before the injury occurred. In a slip and fall case, for example, a successful plaintiff would recover damages calculated to compensate for medical expenses and income lost as a result of the injury. In the context of a wrongful life claim, however, compensatory damages raise logical problems. The basic claim is that the physician or geneticist made a mistake. Had the mistake not been made, the plaintiff asserts, his or her parents would have terminated a pregnancy.

This raises two distinct issues. First, if the mistake had not occurred, the plaintiff would not exist and could not bring a tort claim in court. Second, and perhaps more troubling, the plaintiff in a wrongful life case necessarily claims that she has been injured by a parental decision not to terminate the pregnancy. Put differently, tort law provides remedies to wrongs done to individuals. In a wrongful life case, the “wrong” claimed by the plaintiff is the plaintiff’s own existence, however impaired that existence may be. Accordingly, courts have been quite reluctant to recognize the tort because, as the Illinois Supreme Court put it, they are uncomfortable with the “judgment that an individual life is so wretched that one would have been better off not to exist.”

It is tempting to try to analyze this more subtly and say, on behalf of the plaintiff, that it is not a question of existence versus nonexistence, but rather the difference between a “normal” life and the life the plaintiff will lead, and that the plaintiff should be compensated for the difference. After all, that is similar to what happens in a personal injury case where a plaintiff seeks compensation for the loss of a particular quality of life. The problem with this argument is that in the wrongful life case the plaintiff is not seeking compensation for this “difference.” It is unavoidable that the plaintiff is arguing he or she should not have been born and is seeking compensation for the difference between nonexistence and existence.

The problem with refusing to recognize the wrongful life claim, however, is that it leaves severely injured individuals with no way to recover for their injuries. While the parents can sometimes recover damages under a “wrongful birth” theory, some courts hold that the parents can only recover damages for the increased cost of caring for a disabled child for the first eighteen years of life. In individual cases, the statute of limitations may also be an issue for the parents in a wrongful birth action, as it was in Donovan.

The wrongful life issue is still being debated in state courts, with a large majority of courts refusing to recognize the tort. According to the opinion in the Connecticut case, courts in California, New Jersey, and Washington are the only ones to have recognized the tort. Other courts have ameliorated the harsh consequences of refusing to recognize wrongful life by taking steps such as allowing parents to recover for the cost of care of a disabled adult, as the Connecticut court did here. The wrongful life cases are interesting in their own right, and for what they reveal about the way state courts engage in a process of adaptation and dialogue in response to radical scientific advances, including the development of genetic science.