“Wrongful Birth” and “Wrongful Life” Actions
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Wrongful Life in the Age of CRISPR-CAS: Using the Legal Fiction of “The Conceptual Being” to Redress Wrongful Gamete Manipulation
Wrongful Life in the Age of CRISPR-CAS: Using the Legal Fiction of “The Conceptual Being” to Redress Wrongful Gamete Manipulation Barbara Pfeffer Billauer J.D., M.A., Ph.D.* ABSTRACT Virtually all ‘wrongful life’ actions (claims brought by children for pre-birth injuries) are denied. The basis for this doctrine pivots around the refusal to allow recompense for actions which cause harm, but also result in the child’s birth. We, therefore, are faced with a legal lacuna, where children suffering serious harms as a result of the latest reproductive technologies are legal orphans. This Article details the avenues of potential harm caused by modern reproductive technologies, which I call wrongful genetic manipulation (WGM), where the injured child would have no right of action. To address this void, I create a novel remedy via a legal fiction, “the conceptual being,” which would enable these children to bypass current restrictions and claim an expanded class of damages, including pain and suffering, emotional injury, and unjust enrichment. *About the author: Dr. Billauer holds academic appointments at the University of Porto, Portugal, where she is a Professor in the International Program on Bioethics, and the Institute of World Politics in Washington, D.C., where she is a research Professor of Scientific Statecraft. She has advanced degrees in law and public health and sits on the UNESCO committee currently compiling a Casebook on Bioethics. She has also edited Professor Amnon Carmi’s Casebook on Bioethics for Judges. Prior to transitioning to academia, Dr. Billauer practiced medical malpractice, toxic tort, and products liability law. -
The Wide World of Torts: Reviewing Franklin & Rabin's Tort Law And
CASEBOOK REVIEW The Wide World of Torts: Reviewing Franklin & Rabin's Tort Law and Alternatives Bernard W. Bell* Tort Law and Alternatives authored by Stanford Law School pro- fessors Marc Franklin and Robert Rabin, and recently released in its Seventh Edition, continues to serve as an excellent casebook.' To paraphrase the introduction to the American Broadcasting Company's popular sports anthology, the Wide World of Sports, the casebook spans the country2 to bring students the constant variety of tort litiga- tion.3 Tort law is, in a sense, very traditional-late 19th and early 20th century caselaw provides much of its foundation and many of the ba- sic doctrines have long been settled. At the same time, tort law un- dergoes continuous metamorphosis. Franklin and Rabin have man- aged to maintain a good balance between the old chestnuts, such as * Professor, Rutgers Law School (Newark). I attended Stanford Law School (Class of 1981) and was a student in Marc Franklin's Torts class. 1. MARC A. FRANKLIN & ROBERT L. RABIN, TORT LAW AND ALTERNATIVES: CASES AND MATERIALS (7th ed. 2001). 2. In earlier editions of the casebook, the authors predominantly used cases from New York and California state courts. With each edition, the authors have progressively added geographic variety so that the principal cases increasingly come from jurisdictions other than New York and California. In the seventh edition, the authors have added cases from jurisdictions whose cases were not represented among those featured as principal cases in the sixth edition. Id. at 18 (Utah), 24 (Texas), 95 (Florida), 110 (Rhode Island), 186 (Washington), 198 (Nebraska), 207 (Louisiana), 215 (Arizona), 359 (New Mexico), 399, 917 (Iowa), 452 (Oklahoma), 476 (South Carolina), 632 (New Hampshire), 876 (North Dakota). -
Children As a Blessing: a Reason for Undermining Autonomy?
Children as a Blessing: A Reason for Undermining Autonomy? Ffion Davies A Dissertation Submitted in Partial Fulfilment of the Degree of Batchelor of Laws (with Honours) at the University of Otago. October 2018. ACKNOWLEDGEMENTS To Jesse Wall, for your wisdom, guidance and honesty in supervising this dissertation; To my parents, Helen and Paul, for your never-ending support and belief in my abilities; To the Trio, because I would not have made it through law school without you; And to Harry, because if it was not for your support, I would still be sitting in my room trying to memorise my first-year legislation essays. 2 Table of Contents INTRODUCTION .............................................................................................................. 4 PART A: THE EXISTING LEGAL FRAMEWORK ....................................................... 7 Chapter I: United Kingdom .......................................................................................................... 7 A. Tort Law and Medical Negligence ....................................................................................................... 7 1. McFarlane v Tayside Health Board ................................................................................................................. 7 2. Parkinson v St James and Seacroft University Hospital NHS Trust ................................................................. 13 3. Rees v Darlington Health Board NH Trust.................................................................................................... -
Rights and Responsibilities in Wrongful Birth / Wrongful Life Cases
2006 Forum: Rights and Responsibilities 233 RIGHTS AND RESPONSIBILITIES IN WRONGFUL BIRTH / WRONGFUL LIFE CASES DAVID HIRSCH∗ I INTRODUCTION The parents of a child born as a consequence of medical negligence are entitled, in a ‘wrongful birth’ claim, to damages for the inconvenience and costs of the birth of even a normal, healthy child. But a disabled child born into a life of suffering and need as a consequence of medical negligence is entitled to nothing in a ‘wrongful life’ claim because there is no injury in the eyes of the law. Inconceivable as these propositions may appear, this is the law in Australia as laid down by the High Court.1 How did this situation come about? And what does it say about the rights and responsibilities of parents, their children and doctors in this country? II BACKGROUND Medical errors that lead to the ‘wrongful’ birth of a child may arise in many ways. Prior to conception a female sterilization procedure or a vasectomy may be negligently performed; or a contraceptive device may be incorrectly implanted; or mistaken advice may be given in genetic counselling or testing that leads parents to conceive a child where, had the correct advice been given, they would not have. After conception, a routine blood test or antenatal ultrasound or amniocentesis can be improperly reported, leading to false assurances that the foetus is not at risk of a congenital abnormality and depriving parents of an opportunity to terminate the pregnancy. As the medical industry finds new and innovative ways to cater for our right to reproductive freedom – the right to choose whether and when to be parents – the opportunities for medical errors and consequential lawsuits are sure to increase. -
Claims of Wrongful Life and Wrongful Birth - NY by Victoria Belniak
October 2006 Health Care Law Claims of wrongful life and wrongful birth - NY By Victoria Belniak Background The New York courts have long struggled with determining what injuries are properly compensable when a child is born impaired, and the parents are able to establish that a health care provider was negligent in failing to detect the impairment prenatally or to advise the parents of the likelihood of the impairment. Typically, in such cases, parents will argue that had they been advised of the impairment before the child was born, they would have chosen to terminate the pregnancy. In wrestling with the thorny damages issues presented by such cases, the New York courts have made a distinction between damages stemming from “wrongful life” and those stemming from “wrongful birth.” Issues What is the difference between a claim for wrongful life and one for wrongful birth, and can recovery be had under such theories? Comments Wrongful life claims are typically initiated on behalf of an impaired infant, seeking to recover damages for the very fact that he or she was born at all. The New York courts have rejected such claims, signaling an unwillingness to hold that life, even if marred by disability or disease, is a compensable injury. In Alquijay v. St. Luke’s-Roosevelt Hospital, 63 N.Y.2d 978, 473 N.E.2d 244 (1984), a mother claimed that had she known that her baby would be born with Down’s syndrome, she would have terminated the pregnancy. The Court of Appeals held that there is no cause of action for wrongful life, and life, even when the baby is born in an impaired state, does not constitute an injury. -
Wrongful Birth Or Wrongful Law: a Critical Analysis of the Availability of Child-Rearing Costs After Failed Sterilisation Operations in New Zealand
WRONGFUL BIRTH OR WRONGFUL LAW: A CRITICAL ANALYSIS OF THE AVAILABILITY OF CHILD-REARING COSTS AFTER FAILED STERILISATION OPERATIONS IN NEW ZEALAND Briana Walley* Abstract This article explores the availability of child-rearing costs after failed sterilisation operations in New Zealand. It is divided into three main sections. First, how the accident compensation scheme has dealt with the issue thus far. This article discusses how New Zealand case law and the Accident Compensation Act 2001 provides inadequate cover for parents. Second, this article discusses how New Zealand courts should respond to a common law claim for child-rearing costs. This involves an analysis of the law in the United Kingdom and Australia. This article argues that, while allowing full child-rearing costs is the preferred option, the common law in general is not the ideal place for failed sterilisation cases to be determined. Finally, this article concludes that New Zealand should utilise and expand its pre-existing accident compensation scheme to encompass claims for child- rearing costs following failed sterilisation operations. I. Introduction The English Court of Appeal once stated that:1 … a healthy baby is so lovely a creature that I can well understand the reaction of one who asks: how could its birth possibly give rise to an action for damages? However, when a person has undergone a sterilisation operation, the birth of a child is exactly what they were trying to avoid. When this operation * LLB(hons)/BA University of Canterbury 2017, Graduate Solicitor at Russell McVeagh. 1 Thake v Maurice [1984] 2 All ER 513 at 526. -
Rethinking Wrongful Life: Bridging the Boundary Between Tort and Family Law Philip G
University of Missouri School of Law Scholarship Repository Faculty Publications 1993 Rethinking Wrongful Life: Bridging the Boundary between Tort and Family Law Philip G. Peters Jr. University of Missouri School of Law, [email protected] Follow this and additional works at: http://scholarship.law.missouri.edu/facpubs Part of the Family Law Commons, Health Law and Policy Commons, and the Torts Commons Recommended Citation Philip G. Peters Jr., Rethinking Wrongful Life: Bridging the Boundary between Tort and Family Law, 67 Tul. L. Rev. 397 (1992-1993) This Article is brought to you for free and open access by University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of University of Missouri School of Law Scholarship Repository. RETHINKING WRONGFUL LIFE: BRIDGING THE BOUNDARY BETWEEN TORT AND FAMILY LAW* PHILIP G. PETERS, JR.** I. WRONGFUL LIFE DocTRINE ....................... 400 A. The Majority View ............................ 401 B. The Minority View ............................. 402 C. Barriers to Considerationof a Child Support Claim ......................................... 407 II. THE NORMATIVE BASIS OF THE CLAIM ............ 411 A. FairnessBetween the Child and the Tortfeasor. 411 B. The Inadequacy of ParentalActions for Wrongful Birth ................................ 415 C. FairlyAllocating ResponsibilitiesBetween the Parentsand the Defendant ..................... 418 D. Avoiding the Disadvantagesof Wrongful Life Suits ......................................... -
Wrongful Birth: Who Owes What to Whom and Why?
Washington and Lee Law Review Volume 40 | Issue 1 Article 11 Winter 1-1-1983 Wrongful Birth: Who Owes What To Whom And Why? Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Torts Commons Recommended Citation Wrongful Birth: Who Owes What To Whom And Why?, 40 Wash. & Lee L. Rev. 123 (1983), https://scholarlycommons.law.wlu.edu/wlulr/vol40/iss1/11 This Note is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. NOTES WRONGFUL BIRTH: WHO OWES WHAT TO WHOM AND WHY? Wrongful birth,1 wrongful life,2 and wrongful conception or wrongful pregnancy' are new tort actions.4 The Supreme Court's decision in Roe v. ' See infra text accompanying notes 11-15 (definition of wrongful birth cause of action). The parents of a child born with defects are the plaintiffs in a wrongful birth suit. Robak v. United States, 658 F.2d 471, 474 n.3 (7th Cir. 1981). The plaintiff parents sue a physician or other medical care provider for negligence in genetic counseling, performing an abortion, or performing a sterilization. See id. at 475 nn. 8, 9. 2 See Zepeda v. Zepeda, 41 Ill. App. 2d 240, __, 190 N.E.2d 849, 851 (1963), cert. denied, 379 U.S. -
Distinguishing Wrongful from "Rightful" Life
Journal of Contemporary Health Law & Policy (1985-2015) Volume 6 Issue 1 Article 7 1990 Distinguishing Wrongful from "Rightful" Life Melinda A. Roberts Follow this and additional works at: https://scholarship.law.edu/jchlp Recommended Citation Melinda A. Roberts, Distinguishing Wrongful from "Rightful" Life, 6 J. Contemp. Health L. & Pol'y 59 (1990). Available at: https://scholarship.law.edu/jchlp/vol6/iss1/7 This Article is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Journal of Contemporary Health Law & Policy (1985-2015) by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. DISTINGUISHING WRONGFUL FROM "RIGHTFUL" LIFE Melinda A. Roberts* I. ACTIONS FOR WRONGFUL LIFE Persons contemplating parenthood are far more cognizant of their chances of having a handicapped infant than were their parents or grandpar- ents. Women over thirty-five, for example, are likely to be aware that they have a significant chance of producing a Down's syndrome infant and may choose to undergo amniocentesis. If the test reveals Down's syndrome, the woman may legally choose to abort the fetus. Ashkenazi Jews are at risk of producing an infant with Tay-Sachs disease.' Couples from this population may request genetic screening to determine whether they are carriers of the disease. If it is determined that both are carriers, they may choose abortion or decide to avoid pregnancy altogether. Finally, where the woman has suf- fered from certain diseases during her pregnancy, such as rubella or alcohol- ism, she may realize the risk of bearing a child with mental or physical handicaps and choose to terminate the pregnancy. -
Taming the Tort Monster: the American Civil Justice System As a Battleground of Social Theory Michael L
Brooklyn Law Review Volume 68 | Issue 1 Article 1 9-1-2002 Taming the Tort Monster: The American Civil Justice System as a Battleground of Social Theory Michael L. Rustad Thomas H. Koenig Follow this and additional works at: https://brooklynworks.brooklaw.edu/blr Recommended Citation Michael L. Rustad & Thomas H. Koenig, Taming the Tort Monster: The American Civil Justice System as a Battleground of Social Theory, 68 Brook. L. Rev. 1 (2002). Available at: https://brooklynworks.brooklaw.edu/blr/vol68/iss1/1 This Article is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Law Review by an authorized editor of BrooklynWorks. Brooklyn Law Review Volume 68 2002 Number 1 ARTICLES TAMING THE TORT MONSTER: THE AMERICAN CIVIL JUSTICE SYSTEM AS A BATTLEGROUND OF SOCIAL THEORY' Michael L. Rustadt & Thomas H. Koenig* 02002 Michael L. Rustad & Thomas H. Koenig. All Rights Reserved. Michael L. Rustad is the Thomas F. Lambert Jr. Professor of Law and Director of the Intellectual Property Law Program at Suffolk University Law School School. B.A. 1971, University of North Dakota; M.A. 1973, University of Maryland; Ph.D. 1981, Boston College; J.D. 1984, Suffolk University Law School; LL.M. 1986, Harvard University Law School. Thomas Koenig is Professor, Department of Sociology and Law, Policy and Society Doctoral Program, Northeastern University. A.B. 1971, University of California, Santa Cruz; M.A. 1973, University of California Santa Barbara; Ph.D. 1979, University of California, Santa Barbara. This article is dedicated to the memory of Thomas F. -
Products Liability and the Fertility Industry: Overcoming Some Problems in “Wrongful Life” Francis Sohn†
\\jciprod01\productn\C\CIN\44-1\CIN108.txt unknown Seq: 1 25-FEB-11 10:41 Products Liability and the Fertility Industry: Overcoming Some Problems in “Wrongful Life” Francis Sohn† Introduction ..................................................... 145 R I. Products Liability in the United States and England ...... 149 R A. Products Liability in the United States ................. 149 R B. Products Liability in England .......................... 153 R II. What Are the Torts of Wrongful Life and Wrongful Birth? .................................................... 156 R A. What is Wrongful Life, and What Are its Problems?.... 157 R B. Conclusion of this Sub-Section ........................ 162 R C. What is Wrongful Birth, and What Are its Problems? . 163 R D. Conclusion of this Sub-Section ........................ 166 R E. Similarities and Differences in English Law Wrongful Life................................................... 166 R F. Conclusion of this Sub-Section ........................ 170 R G. Wrongful Birth ....................................... 170 R H. Conclusion of this Section ............................ 170 R III. Rethinking Wrongful Life: A Products Liability Approach ................................................ 171 R A. Is Sperm a Product? .................................. 172 R B. What is Defective Sperm? ............................. 173 R C. What Difference Does it Make? ........................ 173 R D. How Likely is Reform? ................................ 175 R Conclusion ...................................................... 176 R Introduction The first pregnancy created from frozen human sperm occurred in 1953,1 and the first commercial sperm bank in the United States opened in Minnesota in 1970.2 Later that decade, the first pregnancy produced in † Candidate for J.D., Cornell Law School, 2011; B.A., The University of Chicago, 2008. I would like to thank Professor James A. Henderson, Jr., for introducing me to the law of torts and helping me learn to love it. -
A Wrongful Existence in the Netherlands H F L Nys, J C J Dute
393 REPRODUCTION J Med Ethics: first published as 10.1136/jme.2003.005215 on 2 August 2004. Downloaded from A wrongful existence in the Netherlands H F L Nys, J C J Dute ............................................................................................................................... J Med Ethics 2004;30:393–394. doi: 10.1136/jme.2003.005215 rongful life claims have always been controversial. The Court went further, ruling that the child herself is also Courts in England,1 the USA,2 and Australia3 have entitled to compensation in respect of non-pecuniary Wgenerally refused to accept them. However, are damages. To obtain this result the Court reasoned as follows. wrongful life claims becoming more commonly accepted in First, as noted before, it accepted that the hospital and the continental Europe? After the widely discussed Perruche case midwife had a legal obligation to take care of the interests of in France (now overruled by article 1 of the Act of 4 March the unborn child. The unborn child may derive rights of its 2002 stating that no one can sue for damages for the sole fact own from this obligation. Secondly, the Court accepted a of their birth),4 and a judgment of a Brussels tribunal in July causal relationship between the fault of the midwife and the 2002 that has passed almost unnoticed, the Court of Appeal chromosomal disease the child is suffering from. Although of The Hague, the Netherlands, in a lengthy and motivated from a medical–biological point of view this disease exists judgment of 26 March 2003, awarded moral damages to a independently of the behaviour of the midwife, its possible child born with a severe chromosomal disease.5 This presence could have been detected by genetic testing, which judgment differs from the Perruche and Brussels judgments was not done because of negligence.