Brief: End Wrongful Birth Lawsuits

January 26, 2019

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A Catholic perspective:

A wrongful birth lawsuit is one in which a parent of a child with congenital defects claims that the physician’s treatment or advice deprived the parent of the right to decide whether to avoid the birth of the child through abortion.[i] By allowing doctors to be sued on these grounds, the law considers a disabled child to be a damage to his or her parents. In technical terms, the law provides such parents with a “cause of action” to sue their physician. The TCCB supports eliminating the wrongful birth cause of action because we believe that the birth of a disabled child is not a valid reason to sue a physician.

We believe this because we have received from Christ a commandment of love: “You shall love the Lord your God with all your heart, and with all your soul, and with all your mind. This is the greatest and first commandment. And a second is like it: You shall love your neighbor as yourself.”[ii] Christ teaches us that our neighbor is precisely the individual who is most vulnerable, marginalized, forgotten, and cast aside.[iii] Catholics thereby receive two of our most fundamental moral imperatives: respect innocent life and care for the weak and defenseless. In the words of Pope Francis, “even the weakest and most vulnerable, the sick, the old, the unborn and the poor, are masterpieces of God’s creation, made in his own image, destined to live forever, and deserving of the utmost reverence and respect.”[iv]

[i] Haymon v. Wilkerson, 535 A.2d 880, 883 (D.C. 1987).

[ii] Mt. 22:37-40; cf. Deut. 6:5; Lev. 19:18; CCC #2055.

[iii] Lk. 10:25-37.

[iv] Vatican Radio, Pope Francis: All life has inestimable value. (July 17, 2013)

Even the weakest and most vulnerable
are masterpieces of God’s creation, made
in his image, destined to live forever, and
deserving of the utmost reverence and respect.

~Pope Francis

Texas law and policy:

In Texas, this cause of action was established in 1975 by the Texas Supreme Court in Jacobs v. Theimer, in which the parents of a disabled child born in 1968 sued their physician for negligence because he did not inform them that Mrs. Jacobs had contracted rubella during pregnancy and therefore the child was likely to be born with physical disabilities.[v] After noting the difficulty of comparing the financial burden of no life to disabled life, the Court permitted a wrongful birth cause of action in which parents could recover the cost of disabilities caused by the child’s birth.[vi] Figure 1 illustrates that 10 states in the U.S. currently prohibit this cause through state law; another 4 states prohibit this cause through state courts.

This cause of action implies that allowing a disabled person to be born is an injury or damage to his or her parents. The TCCB rejects this notion and has supported bills such as Senate Bill 25 from the 85th Legislative Session.[vii] The bill’s authors explained that such lawsuits encourage doctors to take a defensive posture by searching for disabilities and recommending abortion to avoid litigation.[viii] Laws which foster eugenic abortions must be removed.

Additionally, Texas law requires physicians to offer prenatal diagnostic tests, communicate the results to their patients, and allows patients to sue physicians who are negligent or engage in malpractice. We fully support these laws because they maintain a high standard of healthcare. The proposed law would never excuse a doctor from the duty to offer tests and communicate the results to patients. Nevertheless, when those tests indicate that an unborn child is disabled, there should be no ability to sue a doctor for their willingness to care for the disabled child. We see intrinsic value and ineffaceable human dignity in every person and we encourage legislators to reject the idea that someone’s life can be reduced to a financial damage that must be repaid.

[v] See Haymon v. Wilkerson for a discussion of the distinction between wrongful birth and wrongful life causes of action.

[vi] Jacobs v. Theimer 519 S.W.2d 846 (1975) at 849-850.

[vii] Creighton, et al., Senate Bill 25, 21 November 2016

[viii]  “Layout of CSSB 25,” in Audio/Video Archive (Austin, TX: The Texas State Senate, March 20, 2017)

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