Bryan Santana was born in October 2008. He had no arms and only one leg. Bryan's parents sued for "wrongful birth," and a jury awarded them $4.5 million in damages.[1] The jury found that Bryan's parents had no warning of their son's condition – despite two sonograms – due to the negligence of their obstetrician and ultrasound technician. During the trial, Bryan's parents testified that, had they known of their son's disability, they would have terminated the pregnancy. Welcome to the heartbreaking world of the wrongful birth claim.

Wrongful birth is a type of medical malpractice claim in which parents assert that the negligence of a doctor, clinic, or other healthcare provider caused the parents to carry to term a pregnancy that they would otherwise have terminated. Usually the baby has an extremely serious medical condition, such as a chromosomal abnormality or genetic disease . Put in such stark terms, wrongful birth lawsuits sound horrific, a crude ploy for money that would only be seized upon by the most mercenary and unfeeling parent. After all, isn't unconditional love the defining characteristic of parents, or at least of decent parents? What kind of people openly state that they wish their child had never been born?

The painful admission at the heart of wrongful birth cases – that the parents must say they would have terminated the pregnancy had they known of the fetus's medical condition – is a product of the rigid requirement of negligence claims.

What is a negligence claim, and how does it relate to wrongful birth? Negligence is a subcategory of tort law. A "tort" is a personal injury caused by civil or criminal wrongdoing. The injured party sues the wrongdoer, seeking compensation (called "damages") for her injury, and a judge or jury determines what is owed. In many tort cases, including wrongful birth claims, the tort is negligence – meaning, the plaintiff alleges that the defendant was negligent, and that this negligence caused the plaintiff's injury.

The basic elements of a negligence claim are duty, breach, cause, and damages. First, the plaintiff must show that the defendant owed her a duty of care: that he was "obligated to act in a certain manner toward the plaintiff." In a wrongful birth claim, this duty of care is often the duty owed by a doctor to his patient, and may be judged based on relevant laws, hospital or clinic guidelines, or the standards by which similar doctors operate. Second, the plaintiff must show breach, that the defendant failed to act according to the standard of care and thus breached his duty to the plaintiff. Third, the plaintiff must show cause, that the defendant's breach was the cause of the plaintiff's injury.[2] Finally, the plaintiff must show damages, that the injury harmed the plaintiff in some legally recognized way.[3] In wrongful birth cases, the remedy is money, because the law has no other way to redress the harm suffered.[4]

In a typical wrongful birth claim, the parents allege that the fetus had a serious medical condition which the doctor failed to diagnose. In theory, most people would agree that this constitutes medical malpractice: a doctor reads tests results wrong, or disregards a significant risk to the fetus, and a child is born with a serious medical disability as a result. Even though there is nothing the doctor can do to correct his mistake, our notions of civil justice demand acknowledgement, punishment, recompense. However, to show damages – that the parents have suffered some legal injury as a result of the doctor's negligence – the parents must assert that they would have done something different had they known. If the parents say that they were determined to have this baby no matter what, that they would have proceeded with the pregnancy despite knowing of the fetus's condition, then there is no wrongful birth claim.[5]

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Thus, in a wrongful birth claim, the civil justice system forces parents to wish, under oath, that their child had never been born. The law doesn't concern itself with the mysteries of the human heart; it doesn't care how much these parents love their child now, how carefully and completely they devote themselves to their child's care. A wrongful birth claims means that you were damaged by losing the opportunity to do something differently; by losing the opportunity, in fact, to not have this child. Wrongful birth claims can serve a practical purpose – helping parents to recover damages that they can put toward the care of their disabled or chronically ill child. Perhaps they serve an emotional purpose, too, allowing the parents to name their suffering – the betrayal by a trusted doctor, the healthy child that never arrived. In the end, the story of a wrongful birth lawsuit is one of love and loss mingled, and civil justice is a blunt instrument designed for clear injury and remedy, not for peering into the depths of a parent's heart to untangle the knotted threads of grief and joy.

This article has been prepared by Elle Woods & Associates and the Powder Room for informational purposes only and does not constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

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[1] Bryan's parents estimated that it would cost $9 million to care for Bryan for the rest of his life, based on a health plan that included "prostheses, wheelchairs, operations, attendants and other needs." The jury awarded them half of the estimated cost.

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[2] I'm oversimplifying, as there are multiple types of causation, but this is all you need to know for the purposes of this post.

[3] "Damages" can refer both to the plaintiff's injury and to the money she will be awarded if she wins her case.

[4] The purpose of awarding damages in a tort case is to "make the plaintiff whole," but because many personal injuries can't be fixed, the court awards the victim money as alternate compensation for her harms. For example, imagine that your leg was broken in a car accident. You sued the other driver for negligence and won. Now what? The court can't order him to remedy his negligence by healing your leg, or going back in time to avert the accident. The harm is done, and it cannot be undone. Instead, the court will attempt to make you "whole" by ordering the other driver to compensate you for your losses, such as medical bills, lost wages, pain and suffering, and other damages.

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[5] The parents could still sue, but they would have to bring a claim under another cause of action, not wrongful birth.