Wrongful birth lawsuits are not about women’s rights

There’s always been a bit of a tension between the pro-choice and disability rights communities regarding the decision to abort fetuses with disabilities, and it’s coming to a head now that the Arizona senate has passed a bill banning “wrongful birth” lawsuits. Many left-leaning sources have characterized this legislation as protecting doctors who intentionally and paternalistically withhold disability-related information from expectant mothers because they think that it will prevent an abortion (see, e.g., HuffPo; Interestingly, Mother Jones has been the voice of reason here, noting that the bill doesn’t prevent lawsuits based on intentional withholding of information). Huffington Post and addictinginfo have also suggested that this bill will make it harder for women to sue for personal injury due to doctors withholding information about ectopic pregnancies.

They need to calm the heck down. There are some very serious threats to women’s health out there, including the ongoing and completely ridiculous debate over whether all employer health plans should be required to cover hormonal contraception (duh; they should). Threats to the ability to bring “wrongful birth” lawsuits are not something feminists should worry about. In fact, there are very good disability-rights-based reasons to support this bill.

First let’s look at the text of the bill. It’s very simple:

12-718.  Civil liability; wrongful birth, life or conception claims; application

A.  A person is not liable for damages in any civil action for wrongful birth based on a claim that, but for an act or omission of the defendant, a child or children would not or should not have been born.

B.  A person is not liable for damages in any civil action for wrongful life based on a claim that, but for an act or omission of the defendant, the person bringing the action would not or should not have been born.

C.  This section applies to any claim regardless of whether the child is born healthy or with a birth defect or other adverse medical condition.

D.  This section does not apply to any civil action for damages for an intentional or grossly negligent act or omission, including an act or omission that violates a criminal law.END_STATUTE

First note that this bill can’t possibly restrict lawsuits over ectopic pregnancies because it only applies to lawsuits in which a child has been born and allegedly should have been aborted or otherwise not brought to term. Ectopic pregnancies are automatically fatal to the embryo if nature is allowed to take its course; as a result, there is no way that a child can be born from an ectopic pregnancy as a result of the doctor’s failure to tell the mother she had one. Women would pretty clearly be able to sue for personal injury based on failure to diagnose an ectopic pregnancy.

Second, it’s important to know some background about “wrongful life” and “wrongful birth” lawsuits. They’re essentially medical malpractice lawsuits – that is, lawsuits based on negligent conduct, not intentional conduct by a doctor aimed at preventing an abortion – in which the negligent conduct by the doctor is failure to detect that a fetus has a disability and inform the mother. The mother must prove that, had she known of the child’s disability, she would have had an abortion, and the fact that she did not have an abortion based on the child’s disability harmed her (or, in “wrongful life” lawsuits, harmed the child). There may be some situations in which the lawsuit is based on negligent genetic counseling that would have prevented the child from having been conceived in the first place, but that’s not the archetypical case.

Even if one is in favor of these causes of action existing, the Arizona bill is far from radical. About half of the states in the U.S. already don’t recognize “wrongful life” or “wrongful birth” as valid causes of action; many never have.

But there are also good reasons to not want them to exist. Disability law scholars have long criticized these types of lawsuit (see, e.g., this article from Harvard’s Civil Rights-Civil Liberties Law Review). “Wrongful life” suits are particularly indefensible from a disability rights standpoint, as it’s the child who is claiming to have been harmed by not having been aborted and the success of the claim therefore rests on whether or not the jury believes that it’s better to never have been born than to have been born with the child’s disability. Even in “wrongful birth” cases, which theoretically don’t require the jury to believe that the child’s life is absolutely worthless, the success of the claim requires the parent to repeatedly and convincingly state, through a judicial process that might take years, that her (most likely living) child should never have been born; not exactly a recipe for the start of a healthy mother-child relationship.

I will acknowledge that it’s at least ambiguous whether the Arizona bill would prevent lawsuits that I think should be allowed. For example, some pregnancies may be sufficiently dangerous to the mother that the mother herself may suffer physical harm or death if she isn’t informed about the danger and therefore fails to terminate the pregnancy. In a sense, a lawsuit over this type of negligence may be characterized as “a claim that, but for an act or omission of the defendant, a child or children would not or should not have been born.” But it’s also possible to construe the statute narrowly and say that this sort of lawsuit isn’t based on the claim that the child shouldn’t have been born but rather the claim that the mother should not have continued the pregnancy. These phrases are equivalent for certain practical purposes but have different implications: a claim that the mother shouldn’t have continued the pregnancy implies that the problem was with the mother’s health, not some undesirable feature of the child. It also helps to keep in mind that a lawsuit based on the doctor’s failure to warn the mother that her pregnancy has become dangerous would not usually be referred to as a “wrongful birth” lawsuit.

I’m also not entirely sure I would oppose a “wrongful conception” claim. As someone with Jewish ancestry, for example, I’ve chosen to get screened for the Tay-Sachs gene to ensure that I do not end up having children with another Tay-Sachs carrier. Tay-Sachs is an excruciatingly painful and fatal disease, and I’m not sure I want to relieve doctors of the duty to take reasonable care in conducting genetic screenings to prevent Tay-Sachs. I’m sure some would argue that it’s hard to draw the line between screening for Tay-Sachs and screening for other disabilities, including the ones I have. But I am pretty sure that there is a line and that it’s possible to say with some certainty that Tay-Sachs screening is on the right side of it.

In any case, the Arizona bill is at the very least not a grand overreaching by pro-life conservatives. The relevant issues are tough ones that go far beyond women’s reproductive autonomy. Although I can imagine someone opposing this bill and still caring about disability rights, framing it as a clear-cut issue is essentially saying that disability rights don’t matter (something that’s unfortunately not all that uncommon).

ETA: if you want an example of how godawfully these suits play out in real life, check out this recent case in which parents won 2.9 million against a doctor for the wrongful birth of a child with Down’s Syndrome. By their own account these parents love their child and only sued in order to get money to provide for her; I don’t blame them. But there’s something creepy about a legal system that offers parents of children with disabilities tons of money to care for them, but only if they say sufficiently convincingly that they did not want those children at all and would have aborted them had they known they’d be disabled (and of course to say that sort of thing convincingly you often have to convince yourself). Parents who can’t establish that their child would never had been born but for a doctor’s negligent failure to detect the child’s disability are stuck either footing that entire $2.9 million bill for services (if they have it) or trying to milk it out of the public safety net (which is terrible).

8 Comments

Filed under Children's Rights, Disabilities, Feminism, Health Care, The Law as Applied to Weird People & Situations

8 responses to “Wrongful birth lawsuits are not about women’s rights

  1. The one case that makes sense to me for this wrongful life thing is if there is a genetic abnormality that means the child will not live past their first birthday. When I had an amniocentesis with Holly the doctor said that one of the things it tests for is just this – a genetic abnormality that would cause the child to live less than a year. I don’t remember what that condition was called, but if my doctor performed an amnio (which I don’t think a doctor who opposed abortion would even do… I mean, what’s the point?) and didn’t tell me that my child would be horribly sickly and would die within a year, I believe I would definitely sue to doctor for wrongful life as the horrible suffering my child would be going through would have been preventable.

    That’s the only case I can think of where I think that this type of law suit totally makes sense.

    (btw, this is your sister)

  2. Wrongful life or birth lawsuits ultimately imply that it is not worth living if you have a disability, and that fetuses that will be born with disabilities ought to be aborted because of the disability.

  3. Pingback: Wrongful Birth Verdict Signals Growth of the Culture of Death, Threatens the Disabled - Page 2 - Christian Forums

  4. One reason I don’t identify as “pro choice” is because of feminists/other people who will basically get really mad and demanding if you have any reservations about abortion being used ever, even if you don’t actually advocate a ban personally.

    I took a women’s studies class a few months ago where one of the students mentioned a billboard that is supposedly somewhere in the city I live. I don’t drive so I haven’t seen it. But basically they described it as the billboard saying that there was a concerted effort to wipe out the Black community, including through eugenics and abortion and that having children was one way of supporting the Black community. There was purportedly a link to a website for more information.

    This got some VERY indignant responses from different people there who said the billboard should not exist. However, none of them had actually looked at the website. To me the content of the website would make a very big difference. I think a website about how eugenics has been used against Black people paired with information and resources for new mothers would make the described billboard totally appropriate (many women get abortions because they feel poverty and lack of social support would prevent them from being good mothers). On the other hand, if it was a bunch of stuff guilt tripping women and telling them they were going to hell if they had an abortion, it would be totally in appropriate.

    Most likely there were both good and bad things about it, of course, but both extremes are possible. Of course, I don’t know it said said since none of them knew what the website was or what organization had put up the billboard they thought should be taken down. That’s the extent that they were responding without thinking.

    Another big issue I have with many feminists is that they get very indignant about abortion being used to eliminate women in “the global south” but they don’t care at all when the same thing is done to disabled (“defective”) people.

    Personally, I would have no problem at all if all pre-conception information was withheld from mothers, unless there was even a remote chance of there being a health risk to the mothers themselves. This includes diseases, disabilities, gender, etc. When eugenics is no longer socially powerful and there won’t be widespread use of abortion to screen certain kinds of people, then maybe society will be ready for that information.

    I get that people disagree with me and maybe they could even be right, but it’s hard to take that seriously unless the person is least paying lip service to combatting the of eugenics, even/especially when eugenics is being used by people who aren’t “like them.”

    • “used by people who aren’t “like them.””

      should be “used against people”

      sorry sorry

      Also gee that was a long comment.

    • Twitchy Woman

      There are definitely diseases that are genetic that I actually think shouldn’t exist in the world, and that preenting these genetic diseases is a worthwhile thing even if technically meets the definition of “eugenics.”

      I agree that the line is hard to draw, and there does seem to be a distinction between pre-conception screenings and selective abortions, and (for those of us who aren’t totally pro-life) between selective abortions and forcibly sterilizing or killing people. For example, there are some genetic traits that I’d go a little out of my way to prevent at the pre-conception stage even if I wouldn’t personally have an abortion if I found out that my fetus had that trait. Trisomy 13, for example, frequently causes miscarriages or early infant death and it’s one reason I don’t want to have kids too late in life (old eggs make trisomies more likely). But kids with Trisomy 13 often live happily for years, and if I find out that my fetus has Trisomy 13 after I’ve already bonded with it and gotten attached to it and started to think of it as a child, I’d continue the pregnancy since I’d want to give my child a chance to have a worthwhile life.

      As for when it’s ok to conduct pre-conception screening, I draw a line at diseases that are directly fatal early in life, like Tay-Sachs. I wouldn’t say that preventing Tay-Sachs is “eugenics” because the goal isn’t to remove the gene from the population; in fact, if you’re a Tay-Sachs carrier then purposefully marrying a non-carrier is more likely to keep the Tay-Sachs gene in the population than if you marry a fellow carrier and then have children who die painfully at age six. I think the Ashkenazi Jewish community (which is most prone to Tay-Sachs and is therefore one of the few communities that noticeably benefits from screening) would be pretty offended at the characterization of pre-pregnancy Tay-Sachs screening as “eugenics” considering the history of our community in relation to the eugenics movement.

      • That definitely all makes sense. I’m not sure where I’d “draw the line” but I definitely don’t like where most other people put it now. I think there is a big difference with what you are saying and someone who talks about wanting women to have more ways to prevent “defective” children from being born (I literally saw this is in a pro-choice feminist essay in a major academic book). I’m not completely sure you’re right, but I don’t have a better answer than you and I’m pretty sure the other way is wrong.

  5. bagpipesandbells

    As one who subscribes to the philosophy of antinatalism (the position that assigns a negative value to birth/life and claims we were all unduly and dramatically harmed by being brought into existence) I fully support wrongful birth/life litigation. Since every one of us was harmed by being brought into existence, it follows that the ones who brought us into existence and/or allowed us to come into existence should be held responsible, and this goes for whether one is disabled or not.

    I’m disabled myself and my life is hardly worth continuing, much less worth starting. If I had my way I’d be all over wrongful birth/life lawsuits against the doctors at the facility I was born AND my biological parents. They committed the supreme act of evil by bringing me into existence and I wish there was a way to hold them accountable.

    “Each one of us was harmed by being brought into existence. That harm is not negligible, because the quality of even the best lives is very bad – and considerably worse than most people recognize it to be. Although it is obviously too late to prevent our own existence, it is not too late to prevent the existence of future possible people.” – David Benatar; Better Never to Have Been: The Harm of Coming into Existence.

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