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Home , Damages, Proximate cause, Standard of care, Wrongful birth, Wrongful life

What’s Unconstitutional About Claims? Ask Jane Roe . . .

By: Bruce R. Parker, Scott C. Armstrong and Thomasina E. Poirot

Bruce R. Parker, a Partner in Venable's Products Liability Practice Group, has led the expert and science development in several mass including breast implants, latex gloves, diesel exhaust, contact lens solution, Mirapex, Actos, Benicar, injectable iron and proton pump inhibitors. He has tried to verdict cases involving breast implants, latex gloves, Mirapex and Actos. He has argued several MDL Daubert hearings as lead counsel. He is a Fellow in the American College of Trial Lawyers. Mr. Parker was President of the IADC (2006-07), President of the Maryland Defense Counsel (1988), Director of the IADC Trial Academy (August 2004), Dean for the IADC Corporate Counsel College in 2011, and served on DRI’s (2005-08), and Lawyers for Civil (2006-07).

Scott C. Armstrong is a member of the and Mass Torts Litigation Practice Group at Venable LLP in Baltimore, Maryland. A cum laude graduate of the University of South Carolina School of , Mr. Armstrong has significant experience defending complex, multi-party litigation cases and regulatory enforcement matters. His current practice focuses on electronic , legal research and writing, and and trial support for complex multi-district litigation involving vaccines and pharmaceutical drug products.

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Thomasina Poirot is a member of Venable’s Product Liability and Mass Torts Practice Group; her practice concentrates on complex pharmaceutical litigation, medical , and coverage matters. Ms. Poirot currently represents a pharmaceutical client involved with the defense of the national opioid litigation and additionally plays a significant role in the representation of a leading national laboratory in a variety of litigation matters, including genetic testing and phlebotomy claims. In addition to her work with pharmaceutical and laboratory clients, she also advises for-profit and non-profit organizations about the adequacy of their insurance portfolios in light of their specific operations and industry and legal risks.

ORT law enables an individual genetic injury itself, but for being to recover compensatory born. In simple terms, the infant is T caused by another’s asserting that it would be better not wrongful conduct. Compensatory to exist than to exist with a damages, in theory, put the injured disability. party in the same position occupied Unlike a claim for wrongful life, before the injury occurred. This a claim can be article proposes that a claim for brought by the parents for their wrongful life contradicts both the economic recovery. The essence of goals of law and the holding of the claim is that, but for the Roe v. Wade.1 defendant’s conduct, the parents A wrongful life claim is asserted would have aborted the pregnancy by the legal guardian of an infant and would have avoided the born with a genetic disability that extraordinary expenses of raising a has been inherited or developed de disabled child. Wholly aside from novo in utero. Central to the claim is philosophical debates about a claim a showing that, had the infant’s by parents that they would prefer to parents been given correct have no child rather than a disabled information, they would have child, the tort is consistent with the aborted the pregnancy. Since the goals of tort law. That, however is defendant in these cases did not not the case with a claim for cause the genetic mutation to occur, wrongful life. the damages sought are not for the

1 410 U.S. 113 (1973). What’s Unconstitutional About Wrongful Life Claims? Ask Jane Roe . . . 3

This article will first explore child’s parents about genetic risks how a wrongful life claim is associated with maternal age, fundamentally different from a physical condition, family medical wrongful birth claim. It will explain history, or other parent-specific the reasoning offered by courts in circumstances. In a wrongful life 38 states that have rejected case, the child does not allege that wrongful life claims and will the of the defendants explore the strained rationale caused a genetic injury. Instead, the offered by the courts in the three child’s claim is that the defendant’s states that permit recovery for breach of the applicable standard of wrongful life. It will argue that care precluded the parents from wrongful life claims are aborting the pregnancy. constitutionally impermissible Wrongful birth refers to a claim because they are incompatible with brought by at least the mother who the rationale that underlies the alleges that she would have Supreme Court decision in Roe v. terminated her pregnancy or Wade. avoided conception altogether but for the negligence of the healthcare I. Most States Reject Wrongful providers charged with Life Claims preimplantation genetic testing, prenatal testing, or counseling the A. Distinction between parents about the likelihood of wrongful life and giving birth to a child with a genetic wrongful birth claims abnormality. The underlying premise is that negligently Wrongful life2 is an action performed or omitted genetic brought on behalf of the infant who counseling or testing foreclosed the suffers from the genetic disorder. parents’ ability to make an The child claims that the informed decision regarding or other healthcare provider (1) whether to conceive a genetically failed to perform accurate genetic disabled child or, in the event of a testing prior to transferring an pregnancy, to terminate the embryo or during pregnancy, or (2) pregnancy. failed to accurately inform the

2 The term “wrongful life” was first used in 1976) (denying claim for “wrongful life” Zepeda v. Zepeda, 190 N.E.2d 849 (Ill. App. brought by illegitimate child). Today, Ct. 1963), cert. denied, 379 U.S. 945 (1964). however, the term is generally understood Zepeda involved an action by a grown man to apply to an action by a child afflicted with against his father, claiming damages a hereditary defect who alleges that but for resulting from his illegitimate birth. Id. at the defendant’s negligence he or she would 851; see also Stills v. Gratton, 55 Cal. App. 3d not have been born and thus would not 698, 705, 127 Cal. Rptr. 652 (Cal. App. Ct. have had to suffer the defect.

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Wrongful life and wrongful general damages for the actual birth claims are both relatively injury (life) allegedly caused by the recent developments. As recently defendant’s negligence. as 1967, the law recognized neither Unlike wrongful life claims, the wrongful birth nor wrongful life claim for wrongful birth is claims.3 It was not until 1978 that conceptually consistent with the the first court recognized a goals of tort law. When medical wrongful birth claim. 4 No State professionals negligently fail to supreme court allowed a claim for diagnose or inform parents that wrongful life until 1982.5 While the they will give birth to a child with vast majority of jurisdictions now potential defects, they have recognize a claim for wrongful birth, breached the owed only three jurisdictions recognize to the mother 6 and deprived the any type of wrongful life claim. mother of her constitutional right Despite recognizing wrongful life claims, none of those three jurisdictions permits a recovery of

3 See Gleitman v. Cosgrove, 227 A.2d 689, 6 It is unclear whether the father who is not 692-693 (N.J. 1967) (holding that parents generally a patient of the defendants is could not state a claim for wrongful birth owed a from the defendants. and a child could not state a claim for Compare Smith v. Saraf, 148 F. Supp.2d 504, wrongful life). 523 (D. N.J. 2001) (“the right which lies at 4 See Becker v. Schwartz, 386 N.E.2d 807, the heart of wrongful birth cases, while 813 (N.Y. 1978) (recognizing wrongful often referred to as the ‘parents’ right to birth claims). terminate a pregnancy, is the right to have 5 See Turpin v. Sortini, 643 P.2d 954, 966 an -a right which is vested (Cal. 1982) (recognizing wrongful life exclusively in the pregnant woman.”); with claims). Lab. Corp. of Am. v. Hood, 911 A.2d 841, 851 (Md. 2006) (“That [the mother] could have made the decision [to terminate her pregnancy] by herself is not a basis for holding, as a matter of law, that no duty of care extended to [the father].”). See also Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 67-68 (1976) (declaring unconstitutional a state law that required a husband’s written before a married woman could receive an abortion unless a physician certified that the abortion was necessary to protect the woman’s life); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 887-898 (1992) (invalidating a state law that required spousal notification before a married woman could receive an abortion). What’s Unconstitutional About Wrongful Life Claims? Ask Jane Roe . . . 5

to choose whether to carry her fetus Despite the difficulty that courts to term.7 have faced fashioning a rule for Difficulties arise when noneconomic damages, the vast jurisdictions attempt to develop majority of jurisdictions recognize remedies for the tort of wrongful the right of at least the mother to life. In the counterfactual world maintain an action under these envisioned by this claim, the circumstances. parent-plaintiffs would not experience the emotional joy or B. All but three courts have difficulty of raising a disabled child. refused to recognize Courts reach different results on wrongful life claims whether the emotional joy of raising a disabled child should Thirty-eight states, by judicial offset a damage award for the opinion, statute, or both, have emotional pain and suffering. 8 refused to recognize wrongful life claims.9 In all of the court decisions

7 Roe, 410 U.S. at 163-164 (holding that a 145.424; MO. REV. STAT. § 188.130; N.D. CENT. woman has a constitutionally protected CODE § 32-03-43; OKLA. STAT. ANN. TIT. 63, § 1- right to decide whether to prevent the birth 741.12; 42 PA. CONS. STAT. § 8305; S.D. of a child prior to viability); Casey, 505 U.S. CODIFIED § 21-55-1; UTAH CODE ANN. § at 834 (reaffirming constitutional right of a 78B-3-109; Elliott v. Brown, 361 So. 2d 546 woman to choose to have an abortion (Ala. 1978); Walker by Pizano v. Mart, 790 before fetal viability and to obtain it without P.2d 735 (Ariz. 1990); Lininger v. undue interference from the State). Eisenbaum, 764 P.2d 1202 (Colo. 1988); 8 Compare Lodato ex rel. Lodato v. Kappy, Rich v. Foye, 976 A.2d 819 (Conn. Super. Ct. 803 A.2d 160, 161 (N.J. Super. Ct. App. Div. 2007); Garrison v. Medical Ctr. of Del. Inc., 2002) (ruling that a doctor in a wrongful 581 A.2d 288 (Del. 1989); Kush v. Lloyd, birth case was not entitled to an offset of 616 So. 2d 415 (Fla. 1992); Atlanta any award for emotional damage by the Obstetrics & Gynecology Grp. v. Abelson, joy and benefit parents received from their 398 S.E.2d 557 (Ga. 1990); Siemieniec v. child who was born with birth defects, and Lutheran Gen. Hosp., 512 N.E.2d 691 (Ill. thus, trial judge erred in instructing the jury 1987), overruled on other grounds by Clark that doctor was entitled to of v. Children’s Mem’l Hosp., 955 N.E.2d 1065 the joy/benefit rule), with Blake v. Cruz, 698 (Ill. 2011); Cowe v. Forum Group, Inc., 575 P.2d 315, 320 (Idaho 1984) (requiring N.E.2d 630 (Ind. 1991); Bruggeman v. damages for emotional distress to be offset Schimke, 718 P.2d 635 (Kan. 1986); Grubbs by “the countervailing emotional benefits v. Barbourville Family Health Ctr., P.S.C., attributable to the birth of the child”), 120 S.W.3d 682, 690 (Ky. 2003); Pitre v. superseded by statute as stated in Opelousas Gen. Hosp., 517 So. 2d 1019 (La. Vanvooren v. Astin, 111 P.3d 125 (Idaho Ct. App. 1987), aff'd in part and rev'd in part 2005). on other grounds, 530 So. 2d 1151 (La. 9 ARIZ. REV. STAT. ANN. § 12-719; ARK. CODE 1988); Viccaro v. Milunsky, 551 N.E.2d 8 ANN. § 16-120-902; IDAHO CODE § 5-334; IND. (Mass. 1990); Kassama v. Magat, 767 A.2d CODE ANN. § 34-12-1-1; IOWA CODE ANN. § 348 (Md. Ct. Spec. App. 2001); Strohmaier v. 613.15B; KAN. STAT. ANN. § 60-1906; MICH. Assocs. in Obstetrics & Gynecology, P.C., COMP. LAWS ANN. § 600.2971; MINN. STAT. § 332 N.W.2d 432 (Mich. Ct. App. 1982),

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considering wrongful life, the claim putative rights owed to the fetus has been considered a negligence- contradict the mother’s rights to based tort action. Because obtain an abortion. In Rich v. Foye,10 generally applicable a Connecticut state court briefly tort principles apply, the plaintiffs mentioned that “[r]ecognizing a must plead and prove the existence claim for wrongful life can also be of a duty, a breach of that duty, as problematic because any well as a causal relationship that theoretical fetal rights either to exists between the breach of that come to term or not are subject to duty and an injury. To date, no the mother’s legal rights pertaining court has refused to recognize a to control of her pregnancy.”11 wrongful life claim based upon the Additionally, the Oregon Supreme recognition that it is Court briefly noted the conflict unconstitutional to hold that a duty between the child’s claim and the of care is owed to a fetus prior to parent’s right to terminate the viability when under Roe v. Wade pregnancy: and its progeny, no duty is owed to a fetus before the fetus becomes There can be no doubt that viable. Rather, jurisdictions which recognizing that a child in have decided not to recognize T’s position has an interest wrongful life claims have done so in not being born is distinct based on reasoning that focuses on from, and potentially at lack of a legally cognizable injury, odds with, the parents’ the impossibility of calculating interests [in making damages, and/or the lack of causal informed reproductive relationship between the choices] recognized defendant’s conduct and the above . . . Thus, claimed injury. recognizing a child’s Indeed, only two courts have independent legal interest mentioned in dicta that any in being conceived and abrogated on other grounds by Taylor v. A.2d 1327 (Pa. 1986); Schloss v. Miriam Kurapati, 600 N.W.2d 670 (Mich. Ct. App. Hosp., 1999 WL 41875 (R.I. Super. Jan. 11, 1999); Wilson v. Kuenzi, 751 S.W.2d 741 1999); Willis v. Wu, 607 S.E.2d 63 (S.C. (Mo. 1988); Greco v. United States, 893 P.2d 2004); Nelson v. Krusen, 678 S.W.2d 918 345 (Nev. 1995); Smith v. Cote, 513 A.2d (Tex. 1984); Glascock v. Laserna, 30 Va. Cir. 341 (N.H. 1986); Becker, 386 N.E.2d 807 366 (Va. Cir. Ct. 1993); James G. v. Caserta, (N.Y. 1978); Azzolino v. Dingfelder, 337 332 S.E.2d 872 (W. Va. 1985); Dumer v. St. S.E.2d 528 (N.C. 1985); Flanagan v. Williams, Michael's Hosp., 233 N.W.2d 372 (Wis. 623 N.E.2d 185 (Ohio Ct. App. 1993), 1975); Beardsley v. Wierdsma, 650 P.2d abrogated on other grounds by Simmerer v. 288 (Wyo. 1982). Dabbas, 733 N.E.2d 1169 (Ohio 2000); 10 976 A.2d 819 (Conn. Super. Ct. 2007). Tomlinson v. Metro. Pediatrics, LLC, 412 11 Id. at 837 (citing Roe, 410 U.S. at 153). P.3d 133 (Or. 2018); Ellis v. Sherman, 515 What’s Unconstitutional About Wrongful Life Claims? Ask Jane Roe . . . 7

born (or not being C. The rationales for conceived and born) rejecting wrongful life would create potential claims to date tension with the parents’ legal interest in deciding Some courts have rejected whether or not to conceive wrongful life by concluding that it is and bear that child.12 impossible to calculate general damages, such as pain and suffering, However, this constitutional in such a case. Gleitman v. Cosgrove conflict was not the holding in was the first wrongful life .13 either case. Both courts based their In Gleitman, the child’s mother decision not to recognize such a consulted doctors when she was claim on other grounds. Yet the law two months pregnant.14 She in- is clear: Roe v. Wade conclusively formed her doctors that she had established that a fetus is not a been diagnosed with German person and has no legal rights prior measles (i.e., rubella) one month to viability. Therefore, there is no earlier; the doctors negligently duty to a fetus in the first trimester. informed her that “the German Without a duty there can be no measles would have no effect at all and no damages, on her child.”15 The child was born thus no liability. blind and deaf. 16 Had the mother As discussed more fully in known the probabilities she would Section II of this article, litigators have aborted. 17 The court denied should incorporate the the child’s wrongful life claim constitutional argument set forth because he had no “damages herein as the starting point when cognizable at law.”18 In so holding, litigating wrongful life claims in the court mentioned that “it is those jurisdictions that have either impossible to make such a allowed such claims to proceed or determination.”19 Gleitman as well in which wrongful life is a matter of as many other courts have found first impression. that it is simply impossible to award damages based on the “Hobson’s choice” between “non-existence

12 Tomlinson, 412 P.3d at 151-152; see also 13 227 A.2d 689 (N.J. 1967). Viccaro, 551 N.E.2d at 12-13 (holding that at 14 Id. at 690. least on “a theoretical basis, it is difficult to 15 Id. conclude that the defendant physician was 16 Id in breach of any duty owed to [the child]”); 17 Id. at 691. see also Glascock, 30 Va. Cir. 366 (noting 18 Id. at 692. simply that the duty element was “not 19 Id. present”).

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and an existence with a defective summarized the damages condition.”20 conundrum as follows: Traditional tort remedies are compensatory in nature, and the The normal measure of basic rule of tort compensation is to damages in tort actions is restore the injured party to the compensatory. Damages position that would have been are measured by occupied but for the defendant’s comparing the condition wrongdoing.21 In wrongful life plaintiff would have been claims, however, there is no in, had the defendants not allegation that, but for the been negligent, with defendant’s negligence, the child plaintiff’s impaired would have lived a healthy, condition as a result of the unimpaired life. Instead, the claim negligence. The infant is that, absent the defendant’s plaintiff would have us negligence, the child would never measure the difference have been born. Therefore, the between his life with necessarily includes defects against the utter a calculation of damages dependent void of nonexistence, but it upon the relative benefits of an is impossible to make such impaired life as opposed to no life at a determination. This all. Many courts reason that no Court cannot weigh the such comparison is possible value of life with because nonexistence is outside of impairments against the human experience, and as such, it is nonexistence of life itself. “[a] comparison the law is not By asserting that he should equipped to make.”22 In the words not have been born, the of former Chief Justice Weintraub’s infant plaintiff makes it separate opinion in Gleitman v. logically impossible for a Cosgrove: “Ultimately, the infant’s court to measure his is that he would be better alleged damages because off not to have been born. Man, who of the impossibility of knows nothing of death or making the comparison nothingness, cannot possibly know required by compensatory whether that is so.”23 The remedies.24 Wisconsin Supreme Court aptly

20 Willis, 607 S.E.2d at 67. 24 Dumer, 233 N.W.2d at 376; see also 21 Siemieniec, 512 N.E.2d at 697 (Ill. 1987). Strohmaier, 332 N.W.2d at 434 22 Becker, 386 N.E.2d at 812. (“compensatory damages are measured by 23 Gleitman, 227 A.2d at 711. comparing the condition that the plaintiff would have been in but for the negligence What’s Unconstitutional About Wrongful Life Claims? Ask Jane Roe . . . 9

Some courts have also found a issue, particularly in view second justification for their of the very nearly uniform dismissals of wrongful life claims— high value which the law the impossibility of establishing the and mankind has placed on existence of harm. The human life, rather than its Court of Appeals based its decision absence. Not only is there not to recognize wrongful life on to be found no predicate at both grounds when it held that (1) common law or in the plaintiffs suffered no legal statutory enactment for injury, and (2) the plaintiffs’ judicial recognition of the damages were impossible to birth of a defective child as measure. 25 During the court’s an injury to the child; the ontological discussion of the implications of any such cognoscibility of the plaintiffs’ proposition are staggering. injuries, the court penned what has Would claims be honored, perhaps become the most quoted assuming the breach of an passage in wrongful life identifiable duty, for less jurisprudence: than a perfect birth? And by what standard or by Whether it is better never whom would perfection be to have been born at all defined?26 than to have been born with even gross Many other courts have rested deficiencies is a mystery their reasoning for rejecting more properly to be left to wrongful life claims on the refusal the philosophers and the to recognize that the child had theologians. Surely the suffered a legally cognizable law can assert no injury.27 competence to resolve the with the impaired condition resulting from assess. While the discussion above compels the negligence [and it is] impossible to that conclusion, the more fundamental weigh the difference between life with the problem is that we cannot determine in the suffered defects against the alternative of first instance that [the child] has been nonexistence”). injured.”). 25 Becker, 386 N.E.2d at 812; see also Nelson, 26 Becker, 386 N.E.2d at 812. 678 S.W.2d at 925 (“[T]his is not just a case 27 See, e.g., Walker by Pizano, 790 P.2d at in which the damages evade precise 739-740 (“The difficult problem of measurement. Here, it is impossible to quantifying general damages should not rationally decide whether the plaintiff has have prevented the courts from awarding been damaged at all.”); Lininger, 764 P.2d at such damages if in fact an injury had 1210-1211 (“The difficulty that besets [the occurred. It is the genius of the common child’s] complaint is not merely that law that difficult damage questions are left damages are inherently too speculative to to . . . . In our view, if an injury has

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As part of their analyses, some so wretched that one would have courts have also woven policy been better off not to exist. We considerations into their reasoning, therefore hold that claims for relief such as protecting the sanctity of for the wrongful life of congenitally human life. For instance, in holding or genetically defective children that the child had not suffered a should not be recognized in this legally cognizable injury, the State absent clear legislative Supreme Court of Illinois based its guidance.”29 A number of other reasoning on the state’s courts have also relied on such “legislatively expressed policy policy considerations in deciding favoring childbirth over not to recognize wrongful life abortion.”28 The court stated that claims.30 “the public policy of this State to The Supreme Courts of West protect and to preserve the sanctity Virginia and Indiana appear to be of all human life, as expressed in the only courts thus far to base their section 1 of the Illinois Abortion decision not to recognize wrongful Law of 1975, militates against the life claims primarily on the judgment that an individual life is

been caused by a breach of duty, then the 30 See, e.g., Elliott, 361 So. 2d at 548 (“[A] child is entitled to the general and special legal right not to be born is alien to the damages that result. We believe, therefore, public policy of this State to protect and the limited recovery allowed by the courts preserve human life.”); Blake, 698 P.2d at recognizing the tort of wrongful life exhibits 322 (“Basic to our culture is the precept that a fundamental casuistry in their reasoning. life is precious. As a society therefore, our The conclusion that the child is impaired laws have as their driving force the purpose does not ineluctably imply that the child has of protecting, preserving and improving the suffered a legally cognizable injury. quality of human existence. To recognize Principles of tort law require that the wrongful life as a tort would do violence to existence of injury be ascertained first; that purpose and is completely courts should allow the injury caused by contradictory to the belief that life is defendant’s negligence to define the precious.”) (citations omitted); Bruggeman, damages recoverable, rather than allow 718 P.2d at 642 (“We are convinced that an impairment/damage the defendant did not action for wrongful life should not be cause to define the nature of the injury. . . . judicially recognized in Kansas. It has long In the present case, defendants caused none been a fundamental principle of our law of the impairments from which Christy that human life is precious. Whether the suffers. The only result of their negligence person is in perfect health, in ill health, or was that Christy was born.”); Grubbs, 120 has or does not have impairments or S.W.3d at 689 (“[W]e are unwilling to disabilities, the person’s life is valuable, equate the loss of an abortion opportunity precious, and worthy of protection. A legal resulting in a genetically or congenitally right not to be born—to be dead, rather impaired human life, even severely than to be alive with deformities—is a impaired, with a cognizable legal injury.”). theory completely contradictory to our 28 Siemieniec, 512 N.E.2d at 701. law.”). 29 Id. at 702. What’s Unconstitutional About Wrongful Life Claims? Ask Jane Roe . . . 11

element. In James G. v. the underlying premises in Caserta, the court held: this area of the law is that the birth defect is not Despite some factual curable while the child is in relationship to the parents’ the fetal stage. wrongful birth claim, we Consequently, the do not believe that the physician is not being child’s wrongful life claim charged with the failure to can be carried under the cure the birth defect, but usual tort analysis as can rather with the failure to the parents’ wrongful birth give the parents claim. In this latter claim, information about it so liability rests on the that an informed choice physician’s failure to could be made. This duty initially diagnose the birth to inform does not extend defect. The underlying to the unborn child as it is premise is that prudent the parents' decision to medical care would have risk conception or to disclosed the possibility of terminate a pregnancy. birth defects either prior to We, therefore, conclude conception or during that in this jurisdiction, a pregnancy. As a proximate claim for wrongful life result of this diagnostic does not exist in the failure, the parents were absence of any statute precluded from making an giving rise to such a cause informed decision to either of action.31 prevent conception or to make a subsequent Additionally, in Cowe v. Forum informed decision to Group, Inc., the Supreme Court of terminate the pregnancy. Indiana ruled: Within this same ambit of proximate cause is the [T]he determinative issue foreseeability on the part is causation. An essential of the physician that the element in a cause of child will be born with action for negligence is the birth defects. requirement for a reasonable connection Such an analysis cannot be between a defendant’s made of the child’s conduct and the damages wrongful life claim. One of which a plaintiff has

31 332 S.E.2d at 880-881.

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suffered. This element permitted parents under a requires, at a minimum, wrongful birth theory to recover causation in fact—that is, extraordinary damages incurred that the harm would not during the child’s minority. have occurred “but for” the However, a compelling motivation defendant’s conduct. The for each of the three courts to “but for” analysis recognize wrongful life claims was presupposes that, absent the failure of the wrongful birth the tortious conduct, a claim to provide for damages for plaintiff would have been the extraordinary expenses the spared suffering the child would incur after reaching claimed harm. . . . Here we his/her majority. cannot find that but for [the defendant’s] alleged 1. California negligence [the child] would have been spared California was the first the asserted harm[.]32 jurisdiction to recognize an action for wrongful life. In Turpin v. A few other courts have placed Sortini,35 the doctor negligently some emphasis on the causation diagnosed a couple’s first child as element even though their primary having hearing within normal limits justification is on injury.33 when in reality the child was deaf and the condition was hereditary.36 D. Only three states allow Relying on the doctor’s diagnosis, wrongful life claims the couple gave birth to a second child who was also born deaf.37 The Only California, Washington, child sued the doctor for both and New Jersey recognize the tort general and special damages.38 In of wrongful life, but all three have denying general damages, the court limited the child’s damages to the relied upon the same reasoning that cost of the extraordinary care the majority of courts in other caused by the birth defects. 34 In jurisdictions have used to disallow each case, the state law had already wrongful life : “(1) it is

32 575 N.E.2d 630, 635 (Ind. 1991) (internal 34 See Turpin, 643 P.2d 954; Harbeson v. citations omitted). Parke-Davis, Inc., 656 P.2d 483 (Wash. 33 See, e.g., Atlanta Obstetrics & Gynecology 1983); Procanik v. Cillo, 478 A.2d 755 (N.J. Grp., 398 S.E.2d at 560-561 (Ga. 1990) (“The 1984). traditional tort analysis breaks down even 35 643 P.2d 954 (Cal. 1982). further with the final prong, that of 36 Id. at 956. causation, as the defendants cannot be said 37 Id. to have caused the impairment in [the 38 Id. child]”). What’s Unconstitutional About Wrongful Life Claims? Ask Jane Roe . . . 13

simply impossible to determine in to decide in her interest whether any rational or reasoned fashion she should be born.45 whether the plaintiff has in fact Of note, the Turpin court did not suffered an injury in being born specifically overrule an earlier impaired rather than not being California case, Curlender v. Bio- born, and (2) even if it were Science Laboratories, in which the possible to overcome the first Court of Appeal, Second Appellate hurdle, it would be impossible to District, upheld a general damage assess general damages in any fair, claim for wrongful life.46 In nonspeculative manner.”39 Curlender, the parents retained the However, the court ignored its defendants, a medical laboratory own reasoning and awarded special and a physician, to determine damages to the child for the whether they carried Tay-Sachs “extraordinary expenses for disease.47 The defendants provided specialized teaching, training and the parents with inaccurate hearing equipment.”40 The court information regarding their status found that it would be “illogical” to as Tay-Sachs carriers.48 The child allow parents, and not the child, to was subsequently born with Tay- recover for the costs of the child’s Sachs disease, which caused medical care.41 The court reasoned substantial physical deformities, a that (1) nonexistence can, in significant intellectual disability, particularly severe cases, be and severe pain; and the child’s life preferable to life with defects;42 (2) expectancy was determined to be special damages were readily less than four years.49 The court ascertainable;43 and (3) the child’s awarded the child general damages, extraordinary, necessary medical citing the “dramatic increase, in the expenses will place an inequitable last few decades, of the medical burden on the child and her knowledge and skill . . . [available] family.44 Finally, the court held that to avoid genetic disaster.”50 In so an unborn child cannot make her holding, the court imposed on those own decisions, but reasoned that engaged in genetic testing a duty of the child’s parents could be trusted care to the unborn, which has not been disputed in subsequent

39 Id. at 963. available to sue and recover such 40 Id. at 965. damages”). 41 Id. 45 Id. at 962. 42 Id. at 962-963. 46 106 Cal. App. 3d 811 (Cal. Ct. App. 1980). 43 Id. at 965. 47 Id. at 816 n.4. 44 Id. (stating that the child’s receipt of 48 Id. at 815. necessary medical expenses should not 49 Id. at 816. depend “on the wholly fortuitous 50 Id. at 826. circumstances of whether the parents are

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cases.51 Turpin did, however, reject complaint—would not the Curlender court’s rationale have been born at all.52 regarding general damages: No subsequent cases in The basic fallacy of the California have awarded general Curlender analysis is that it damages in a wrongful life action. ignores the essential

nature of the defendants’ alleged wrong and 2. Washington obscures a critical Washington followed California difference between in recognizing a limited cause of wrongful life actions and action for wrongful life. In the ordinary prenatal Harbeson v. Parke-Davis, three injury cases noted above. failed to disclose the risk In an ordinary prenatal of birth defects associated with the injury case, if the mother’s ingestion of the defendant had not been antiepileptic medication Dilantin negligent, the child would during pregnancy.53 As a result, the have been born healthy; two minor plaintiffs were born thus, as in a typical suffering from fetal hydantoin personal injury case, the syndrome.54 defendant in such a case Much like California courts, the has interfered with the Washington Supreme Court child's basic right to be free acknowledged that “[t]he most from physical injury controversial element of the caused by the negligence of [wrongful life] analysis in other others. In this case, by jurisdictions has been injury and contrast, the obvious tragic the extent of damages” and fact is that plaintiff never conceded that “measuring the value had a chance “to be born as of an impaired life as compared to a whole, functional human nonexistence is a task that is being without total beyond mortals, whether judges or deafness”; if defendants jurors.”55 Nevertheless, the court had performed their jobs allowed recovery of special properly, she would not damages without explaining how have been born with the difficulty in determining the hearing intact, but— injury element had been overcome. according to the

51 See, e.g., Turpin, 643 P.2d 954. 52 Id. at 961. 53 656 P.2d 483, 486 (Wash. 1983). 54 Id. 55 Id. at 496. What’s Unconstitutional About Wrongful Life Claims? Ask Jane Roe . . . 15

Instead, the court agreed with the suffering of [the child’s] impaired Turpin court, which found that “‘it existence.”61 Without explaining would be illogical and anomalous to this discrepancy, the court permit only parents, and not the reasoned: “Our decision to allow child, to recover for the cost of the the recovery of extraordinary child’s own medical care.’”56 medical expenses is not premised Additionally, the court found that on the concept that non-life is “extraordinary expenses for preferable to an impaired life, but is medical care and special training” predicated on the needs of the were “calculable.”57 living. We seek only to respond to the call of the living for help in 3. New Jersey bearing the burden of their affliction.”62 Soon thereafter, the New Jersey Of note, the case was a Supreme Court in Procanik v. Cillo58 particularly sympathetic one, as the reversed course from its previous parents’ claim for wrongful birth position 59 on wrongful life claims action to recover the extraordinary and adopted the approach taken by expenses had been barred by California and Washington. The limitations, leaving the prospect of New Jersey Supreme Court no recovery. Noting that the disallowed a claim for general financial impact of the child’s damages but awarded special impairment was felt not only by the damages to a child for failure to parents but also the child, the court diagnose congenital rubella concluded that “[t]he right to syndrome. 60 Just as in California recover the often crushing burden and Washington, in denying general of extraordinary expenses visited damages, the New Jersey Supreme by an act of Court recognized that “[t]he crux of should not depend on the ‘wholly the problem is that there is no fortuitous circumstances of rational way to measure non- existence or to compare non- existence with the pain and

56 Id. at 495 (citing Turpin, 643 P.2d at 965). which, in retrospect, the court found not to 57 Id. at 496. be a proper basis. Rather, the court held 58 478 A.2d 755 (N.J. 1984). that the action was precluded because the 59 See Gleitman, 49 N.J. 22. Additionally, in child “has not suffered any damage Berman v. Allen, 404 A.2d 8, 12 (N.J. 1979), cognizable at law by being brought into the New Jersey court revisited Gleitman and existence.” Id. at 12. confirmed its rejection of a “wrongful life” 60 Procanik, 478 A.2d at 757. action but on a more fundamental ground. 61 Id. at 763. It viewed Gleitman as resting primarily on 62 Id. the impossibility of ascertaining damages,

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whether the parents are available define the damages to sue.’”63 recoverable, rather than Many jurists have rejected the allow impairment/damage “reasoning” offered by the the defendant did not California, Washington, and New cause to define the nature Jersey courts. They have ruled that of the injury.64 those courts glossed over the injury element of wrongful life claims by Similarly, Justice Ted Robertson simply deciding that the difficulty in of the Texas Supreme Court has calculating damages should not bar noted: recovery by a disabled child. The opinions issued by the California, It is tempting to join these Washington, and New Jersey courts courts in fashioning some also share an internal relief for a severely inconsistency—general damages handicapped child, when are too speculative and special that child may be damages are permissible for the burdened with crushing same tort. As the Arizona Supreme medical expenses for the Court observed: remainder of his natural life. [T]he limited recovery allowed by the courts A court should not, recognizing the tort of however, discard wrongful life exhibits a established principles of fundamental casuistry in tort law sub silentio in an their reasoning. The attempt to reach a “right” conclusion that the child is result. Close examination impaired does not of the California and ineluctably imply that the Washington opinions child has suffered a legally reveals such an cognizable injury. unexplained gap in the Principles of tort law decisional reasoning.65 require that the existence of injury be ascertained No court has considered first; courts should allow whether wrongful life claims are the injury caused by unconstitutional based on Roe v. defendant's negligence to Wade 66 and its progeny. Indeed,

63 Id. at 352 (quoting Turpin, 643 P.2d at 64 Walker by Pizano, 790 P.2d at 740. 965). 65 Nelson, 678 S.W.2d at 930 (Robertson, J., concurring). 66 410 U.S. 113 (1973). What’s Unconstitutional About Wrongful Life Claims? Ask Jane Roe . . . 17

none of the defendants in these held that such a duty exists have cases challenged whether a duty of described it as a duty to provide the care was owed to the fetus at all.67 prospective parents with As will be discussed below, a information needed to decide constitutional challenge based on whether to terminate the duty should be the starting point pregnancy. 70 Some courts simply when litigating wrongful life claims conclude that “the duty owed to the in those jurisdictions that have parent inures derivatively to the either allowed such claims to child.”71 However, in order for the proceed or where wrongful life is a mother to choose to have an matter of first impression. abortion, she must have access to that information prior to fetal II. Roe v. Wade Provides that a viability. Roe v. Wade established Non-Viable Fetus is not a that no such duty exists. Therefore, Legal Person under the Law the courts permitting wrongful life claims have wrongfully held that a Wrongful life claims are duty of care is owed by third parties irreconcilable with Roe v. Wade. to the embryo upon conception. Wrongful life claims are necessarily Our legal proposition can be predicated on the contention that summarized as follows: Roe there is a duty of care owed to a established that a mother has an fetus prior to viability.68 This unfettered constitutional right to presupposes that a non-viable fetus decide if the fetus will continue to enjoys legal . The courts exist beyond the first trimester. 72 that have recognized wrongful life Roe stands for the principle that a claims sidestep this important part fetus does not have a legal right to of the analysis.69 Courts that have

67 See Turpin, 643 P.2d at 960 (providing New Jersey in Procanik recognized that that “defendants do not contend that they “[a]nalysis of the infant’s cause of action owed no duty of care either to James and begins with the determination whether the Donna or to Joy”); Procanik, 478 A.2d at 760 defendant doctors owed a duty to him.” 478 (“The defendant doctors do not deny they A.2d at 760. owed a duty to the infant plaintiff, and we 69 See supra note 67. find such a duty exists.”); see also Harbeson, 70 See, e.g., Curlender, 106 Cal. App. 3d at 656 P.2d at 495 (equating the duty owed to 829 (“The ‘wrongful-life’ cause of action the child with the duty to the parents in a with which we are concerned is based upon wrongful birth cause of action: “The negligently caused failure by someone analysis whereby we arrived at our holding under a duty to do so to inform the [regarding wrongful life] is similar to that prospective parents of facts needed by which we used in considering the parents' them to make a conscious choice not to wrongful birth action.”). become parents.”). 68 While the defendants did not challenge 71 See Walker by Pizano, 164 Ariz. at 41. whether the defendant doctors owed a duty 72 Roe, 410 U.S. at 163. of care to the child, the Supreme Court of

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exist in the first trimester. Since the abortion had to meet strict scrutiny fetus has no legal right to exist because the right to abortion was a during the period prior to viability, fundamental right. 75 As such, a third parties cannot owe a duty of woman is entitled to make the care to the fetus during that time decision whether to abort the fetus period. As there is no way to free from overly restrictive state reconcile wrongful life claims with regulation.76 federal constitutional law with The Court in Roe rejected the respect to the duty owed to a fetus, contention that a fetus has rights federal constitutional law prevails, that would limit a mother’s right to rendering wrongful life claims privacy under the Fourteenth unconstitutional and invalid. Amendment’s of due In Roe v. Wade, the United process. Specifically, the Court did States Supreme Court held that a “not agree that, by adopting one Texas abortion statute which theory of life [that a fetus’s life and prohibited at all stages of rights begin at conception], Texas pregnancy except when necessary may override the rights of the to save the life of the mother was pregnant woman that are at constitutionally invalid.73 The stake.”77 The Roe decision does not Court found that the right of privacy, recognize that, in the first trimester, whether found in the Fourteenth a fetus is a “person” with a right to Amendment’s guarantee of exist.78 The Court held that while personal liberty or the Ninth the state at some point has a valid Amendment’s reservation of rights interest in both the health of the to the people, was broad enough to mother and the fetus which allows encompass the decision whether to the State to intrude on the woman’s terminate a pregnancy. 74 Speci- privacy, 79 the State’s interest in fically, the Court ruled that the protecting the mother’s health government may not prohibit becomes compelling only after the abortions prior to viability and that first trimester, 80 and the State’s the government regulation of interest in protecting fetal health

73 Id. at 164. 78 Id. at 158 (providing that “the word 74 Id. at 153. ‘person,’ as used in the Fourteenth 75 Id. at 155 (reiterating that where Amendment, does not include the unborn”); “fundamental rights are involved, . . . id. at 162 (“[T]he unborn have never been regulation limiting these rights may be recognized in the law as persons in the justified only by a compelling state interest whole sense.”). and . . . legislative enactments must be 79 Id. at 159-160. narrowly drawn to express only legitimate 80 Id. at 163 (“With respect to the State’s state interests at stake.”). important and legitimate interest in the 76 Id. health of the mother, the ‘compelling’ point, 77 Id. at 162. in the light of present medical knowledge, is at approximately the end of the first What’s Unconstitutional About Wrongful Life Claims? Ask Jane Roe . . . 19

becomes compelling only after three fundamental rights viability. 81 Prior to the second of which no man can be trimester, there is no State interest deprived without due which would justify interfering in process of law. Our own the mother’s abortion decision. 82 state constitution Moreover, there is not now, nor has proclaims that the there ever been, any judicial “enjoying and defending qualification of the type of life the (of) life” is a natural right. State has an interest in protecting. The Declaration of The Supreme Court of New Jersey Independence states that expounded upon this idea in the primacy of man’s Berman v. Allen, 83 when the court “inalienable” right to life is stated the following: a “self-evident truth.” Nowhere in these One of the most deeply documents is there to be held beliefs of our society found an indication that is that life whether the lives of persons experienced with or suffering from physical without a major physical handicaps are to be less handicap is more precious cherished than those of than non-life. Concrete non-handicapped human manifestations of this beings. belief are not difficult to discover. The documents State legislatures and thus which set forth the the people as a whole have principles upon which our universally reserved the society is founded are most severe criminal replete with references to penalties for individuals the sanctity of life. The who have unjustifiably federal constitution deprived others of life. characterizes life as one of Indeed, so valued is this

trimester. This is so because of the now- 82 Id. (“[F]or the period of pregnancy prior established medical fact . . . that until the to this ‘compelling’ point, the attending end of the first trimester mortality in physician, in consultation with his patient, abortion may be less than mortality in is free to determine, without regulation by normal childbirth.”). the State, that, in his medical judgment, the 81 Id. (“With respect to the State’s important patient's pregnancy should be terminated. and legitimate interest in potential life, the If that decision is reached, the judgment ‘compelling’ point is at viability. This is so may be effectuated by an abortion free of because the fetus then presumably has the interference by the State.”). capability of meaningful life outside the 83 404 A.2d 8 (N.J. 1979). mother’s womb.”).

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commodity that even one In 1992, in Planned Parenthood who has committed first of Southeastern Pennsylvania v. degree murder cannot be Casey, 85 the Supreme Court sentenced to death unless reaffirmed Roe v. Wade and the he is accorded special constitutional right of a woman to procedural protections in choose to have an abortion before addition to those given all fetal viability. In Casey, the criminal defendants. constitutionality of The Moreover, it appears that Pennsylvania Abortion Control Act execution is of 1982, which imposed several constitutionally obligations on women seeking impermissible unless the abortions, was brought into which a defendant question.86 However, the case was has perpetrated was one really about whether Roe v. Wade which involved the taking would be overturned. The Supreme of another’s life. Again, Court ultimately upheld Roe v. these procedural Wade. 87 However, the Court protections and penalties rejected the trimester framework of do not vary according to Roe and instead announced an the presence or absence of undue burden analysis, whereby a physical deformities in the law is held unconstitutional if it victim or defendant. It is poses an undue burden on a woman life itself that is jealously at a stage of her pregnancy before safeguarded, not life in a the fetus has become viable.88 perfect state.84 Justice O’Connor, for the majority, wrote that the trimester framework was never intended to be the

84 Id. at 12-13 (emphasis added; internal an abortion must sign a statement citations omitted). indicating that she has notified her husband; 85 505 U.S. 833 (1992). § 3203, which defines a ‘medical emergency’ 86 Id. at 833 (“At issue are five provisions of that will compliance with the the Pennsylvania Abortion Control Act of foregoing requirements; and §§ 3207(b), 1982: § 3205, which requires that a woman 3214(a), and 3214(f), which impose certain seeking an abortion give her informed reporting requirements on facilities consent prior to the procedure, and providing abortion services.”). specifies that she be provided with certain 87 Id. at 834 (“Application of the doctrine of information at least 24 hours before the stare decisis confirms that Roe’s essential abortion is performed; § 3206, which holding should be reaffirmed.”). mandates the informed consent of one 88 Id. at 873-876 (“In our view, the undue parent for a minor to obtain an abortion, but burden standard is the appropriate means provides a judicial bypass procedure; § of reconciling the State’s interest with the 3209, which commands that, unless certain woman’s constitutionally protected exceptions apply, a married woman seeking liberty.”). What’s Unconstitutional About Wrongful Life Claims? Ask Jane Roe . . . 21

essence of the holding in Roe.89 The child’s birth. 93 The Massachusetts essence of Roe, wrote Justice Supreme Court began its analysis O’Connor, was that a woman’s right by judicially noticing that, to have an abortion is fundamental.90 [a] fetus can be injured not In reaffirming Roe, the Court only by physical force, but stated that, “as a matter of federal by the mother’s exposure, constitutional law, a developing unwitting or intentional, to organism that is not yet a ‘person’ chemicals and other does not have what is sometimes substances, both described as a ‘right to life.’”91 Once dangerous and again, the Supreme Court nondangerous, at home or recognized that there can be no act in the workplace, or by the more discretionary than the mother’s voluntary decision whether to give birth. That ingestion of drugs, alcohol, decision is properly left to the or tobacco. A pregnant woman in consultation with her woman may place her physician or other healthcare fetus in danger by provider. 92 Several lines of engaging in activities decisional law not involving involving a risk of physical wrongful life litigation recognize harm or by engaging in that a duty of care does not extend activities, such as most to a non-viable fetus. sports, that are generally Because an unborn fetus is not not considered to be given the status of a legal “person” perilous. A pregnant in our society, it is incapable of woman may jeopardize the having rights. By way of analogy, it health of her fetus by is often the case that not even a taking medication mother can be subjected to tort (prescription or over-the- liability for injuries attributed to counter) or, in other cases, her decisions during pregnancy by not taking medication. that may harm her unborn child. She also may endanger the For instance, in Remy v. MacDonald, well-being of her fetus by a child brought a negligence action not following her against her mother for personal physician’s advice with injuries incurred in an automobile respect to prenatal care or accident that transpired prior to the by exercising her

89 Id. at 873 (“We reject the trimester 91 Casey, 505 U.S. at 913-914 (1992) framework, which we do not consider to be (Stevens, J., concurring). part of the essential holding of Roe.”). 92 Roe, 410 U.S. at 163. 90 Id. at 876. 93 801 N.E.2d 260, 262 (Mass. 2004).

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constitutional right not to personal injury claims against a receive medical mother.96 treatment.94 The same is true in those jurisdictions that allow wrongful However, the court ultimately life claims but do not allow refused to allow recovery for in wrongful death claims on behalf of utero injuries, and stated “there are an unborn fetus. For instance, the inherent and important differences New Jersey Supreme Court between a fetus, in utero, and a concluded that the legislature did child already born, that permits a not intend to include a fetus within bright line to be drawn around the the definition of a “person” covered zone of potential tort liability of one by the New Jersey Wrongful Death who is still biologically joined to an Act.97 The failure to find a duty to injured plaintiff.”95 These holdings the fetus in New Jersey’s statutory imply a determination that a scheme is wholly consistent with mother does not owe a duty to an Roe v. Wade. Indeed, in Alexander v. unborn fetus. There is logical Whitman, the plaintiffs challenged tension between allowing claims the constitutionality of the for wrongful life but not for fetal Wrongful Death and Survival Statute 98 as violating the Equal

94 Id. at 263. Wrongful Death Act, this Court concluded 95 Id. at 266-267. that the Legislature did not intend to 96 See, e.g., Carpenter v. Bishop, 720 S.W.2d include a fetus within the definition of a 299, 300 (Ark. 1986) (negligent mother not ‘person’ covered by the Act.”) (citing liable for driving vehicle into bridge Giardina v. Bennett, 545 A.2d 139, 143 (N.J. abutment and killing unborn child); Nat’l 1988)); accord Roe, 410 U.S. at 158 (“the R.R. Passenger Corp. v. Terracon word ‘person’ . . . does not include the Consultants, Inc., 13 N.E.3d 834, 837-838 unborn”); see also State in Interest of A.W.S., (Ill. App. Ct. 2014) (recognizing “compelling 440 A.2d 1174, 1177 (N.J. Super. Ct. Juv. & public policy reasoning” underlying refusal Dom. Rel. 1980) (“The homicide and death to hold mother liable in motor tort case by auto statutes, N.J.S.A. 2C:11-2(a) and involving death of fetus); Chenault v. Huie, 2C:11-5(a) do not express a clear 989 S.W.2d 474, 474-475 (Tex. Ct. App. on the part of the legislature to include a 1999) (refusing to allow recovery of fetus within the protected class thereunder. damages to a child attributed to mother’s Quite the contrary, the legislative history is cocaine and alcohol use during pregnancy indicative of an intention on the part of the and refusing to “judicially create a legal legislature to exclude a fetus from the duty that would have the effect of dictating protected class.”), aff’d, 440 A.2d 1144 (N.J. a pregnant woman’s conduct toward her Super. Ct. App. Div. 1981). unborn child”); Cullotta v. Cullotta, 678 98 The court stated “it is clear by the N.E.2d 717, 721 (Ill. App. Ct. 1997) (“no implications of the holding in Giardina and cause of action can be stated for maternal by the language of the survival action prenatal negligence”). statute itself that the New Jersey 97 Acuna v. Turkish, 930 A.2d 416, 426 (N.J. Legislature did not intend to provide the 2007) (“in construing New Jersey’s parents of unborn or stillborn fetuses with What’s Unconstitutional About Wrongful Life Claims? Ask Jane Roe . . . 23

Protection and Clauses was more recently re- of the Fourteenth Amendment affirmed in Planned because they deny a cause of action Parenthood of to the statutory beneficiaries unless Southeastern Pennsylvania a fetus survives past birth. 99 The v. Casey. There, Justice Third Circuit disagreed with the Stevens, writing separately constitutional challenge and from the joint opinion of reiterated the lack of a duty to a O’Connor, fetus during the period in which it is Kennedy and Souter, wrote “unborn”: that, as a matter of federal constitutional law, a fetus Ms. Alexander can only is a “developing organism establish a claim on behalf that is not yet a ‘person’ ” of her child under the and “does not have what is Fourteenth Amendment if sometimes described as a her child (and others ‘right to life.’” This similarly situated) fall(s) principle “remains a within the protections fundamental premise of afforded “person[s]” as our constitutional law that term is used in the governing reproductive Fourteenth Amendment, autonomy.100 and it is clear it does not. The Supreme Court has Similarly, in Washington, already decided that parents can recover for wrongful difficult question for us in life but cannot recover for the death Roe v. Wade. There, the of an unborn child. In Baum v. Court expressly held that Burrington, Holly M. Baum sued a “the word ‘person,’ as used clinic and obstetrician-gynecologist in the Fourteenth alleging the wrongful death of twin, Amendment does not nonviable fetuses she miscarried.101 include the unborn.” The Revised Code of Washington Court held that “person” 4.24.010 then provided, in relevant has “application only part: postnatally.” That constitutional principle a statutory cause of action for survival.” 114 Survival Act imply that an action brought on F.3d 1392 (3d Cir. 1997) (citations omitted); behalf of a deceased fetus pursuant to the see also Thomas v. Ford Motor Co., 70 F. Survival Act is similarly barred.”). Supp.2d 521, 525 (D. N.J. 1999) (“while New 99 114 F.3d 1392 (3d Cir. 1997). Jersey courts have not addressed the issue, 100 Id. at 1400 (citations omitted). at least one federal court has ruled that the 101 79 P.3d 456, 457 (Wash. Ct. App. 2003). Giardina holding and the language of the

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A mother or father, or both, fetus was not covered by the Act, who has regularly and thus affirmed summary contributed to the support judgment for the defendants.105 of his or her minor child, There is an incongruity in and the mother or father, Washington law which prohibits or both, of a child on whom parents from recovering on behalf either, or both, are of an unborn nonviable fetus but dependent for support allows a child to recover under a may maintain or join as a wrongful life theory premised on a party an action as plaintiff duty owed to a nonviable fetus. for the injury or death of As one final example, consider the child. the following scenario: Parents .... who are unable to conceive a child In such an action, in on their own with a addition to damages for surrogate mother to carry their medical, , child to term. Assume that before medication expenses, and the child becomes viable the loss of services and surrogate mother decides that she support, damages may be does not want to spend another six recovered for the loss of months being pregnant and decides love and companionship of to abort the pregnancy. If the the child and for injury to parents sought an to stop or destruction of the the abortion, Roe v. Wade should parent-child relationship defeat the parents’ injunction. in such amount as, under While the case did not involve the all the circumstances of the abortion issue, in Matter of Baby M., case, may be just.102 a New Jersey state court struck down an abortion clause in a The Washington Supreme Court surrogacy contract prohibiting had previously ruled in Moen v. abortion except as allowed by the Hanson that Section 4.24.010 male promisor on the ground that permits recovery for the death of a its enforcement would violate the viable fetus.103 However, whether a surrogate mother’s constitutionally nonviable fetus was included in the protected right, under Roe v. Wade, definition of a “minor child” was a to decide whether to have an matter of first impression. 104 The abortion.106 It was clearly the court determined that a nonviable court’s view that the abortion

102 RCW 4.24.010 (1998), amended in 2019. 106 Matter of Baby M., 525 A.2d 1128, 1159 103 537 P.2d 266, 267 (Wash. 1975). (N.J. Super. Ct. Ch. Div. 1987), aff’d in part, 104 Baum, 79 P.3d at 458. rev’d in part sub nom. Matter of Baby M, 537 105 Id. at 459-460. A.2d 1227 (N.J. 1988). What’s Unconstitutional About Wrongful Life Claims? Ask Jane Roe . . . 25

provision could not be enforced by have failed to address whether a an action for injunctive relief to duty is owed by a defendant to the prohibit an otherwise lawful fetus during the first trimester of its abortion. existence. Instead, the courts have Since the state may not directed their analysis to whether interfere with a woman’s right to an injury exists when the claim is obtain an abortion prior to viability, that no life would be preferred to a and because the fetus itself does not life with a genetic abnormality. have any rights during the period Roe v. Wade established as a when an abortion may be matter of constitutional law that performed, there is an obvious during the first trimester of a conflict with the contention in a pregnancy, the fetus is not owed a wrongful life claim that a duty duty of care. Without a duty, there exists to the fetus from the moment can be no breach and thus no injury of conception. The application of giving rise to damages. As plaintiffs the Supremacy Clause renders continue to push courts that have wrongful life claims either refused to recognize this tort unconstitutional.107 or have not had the issue presented to it, defense counsel should raise III. Conclusion the unconstitutionality of these claims. For counsel in the three One essential element of a tort states that have recognized this tort, is the existence of a legally we urge defense counsel to enforceable duty owed by the aggressively argue the defendant to the unconstitutionality of the tort when plaintiff. Unfortunately, both the it is asserted. courts that have rejected a wrongful life tort and the three courts that have recognized the tort

107 U.S. CONST. art. VI, cl. 2. (“This Constitution and laws and treaties but also Constitution, and the Laws of the United the interpretations of their meanings by the States which shall be made in Pursuance United States Supreme Court. See, e.g., thereof; and all Treaties made, or which Cooper v. Aaron, 358 U.S. 1, 18 (1958) shall be made, under the Authority of the (“Every state legislator and executive and United States, shall be the supreme Law of judicial officer is solemnly committed by the Land; and the Judges in every State shall oath taken pursuant to Art. VI, ¶3 ‘to be bound thereby, any Thing in the support this Constitution.’”) (emphasis Constitution or Laws of any State to the added); James v. City of Boise, Idaho, 136 S. Contrary notwithstanding.”). State courts Ct. 685, 686 (2016) (“The Idaho Supreme are bound to give effect to federal law when Court, like any other state or federal court, it is applicable and to disregard state law is bound by this Court’s interpretation of when there is a conflict; federal law federal law.”). includes, of course, not only the