"To Be or Not To Be": The Perverse Coveting of the "Not-To-Be"

E. Christian Brugger
Reproduced with Permission
Culture of Life Foundation

Maggie Datiles wrote a Culture of Life piece in October explaining how Northern Ireland's High Court had rejected a so-called "wrongful life" suit brought by two IVF children against the clinic where they were created.

The bioethics website BioEdge (www.bioedge.org) just reported that an appeal's court in Belgium recently upheld a similar suit brought by parents against doctors on behalf of their disabled son. The Court of Appeal of Brussels ruled that because of a faulty prenatal diagnosis, which led to a disabled boy being born, the doctors "have injured [the boy's] certain and legitimate interest in being the object of a therapeutic abortion." In other words, the boy had a right to be killed through abortion, and that right was violated when, because of the doctors' misdiagnosis, he was born alive. The news is interesting because although "wrongful birth" suits are not uncommon in European (and U.S.) courts, "wrongful life" suits have generally been rejected. For those who could use a refresher on some legal jargon, a few definitions might be useful.

Both "wrongful life" and "wrongful birth" (and "wrongful conception") suits are perverse variations of standard medical malpractice suits: plaintiffs seek damages from medical professionals or institutions for alleged negligence. The perversity lies in the nature of the defined negligence. In "wrongful life" and "wrongful birth" suits, the negligence lies in the failure adequately to inform parents of factors that if they had known they would have used as the basis of a decision to aborted their child. In "wrongful conception" suits, the negligence lies in the failure to perform procedures that adequately prevent conception or birth (usually sterilizations and abortions).

In a "wrongful birth" suit the parents of a disabled child typically sue a doctor for negligence resulting in the child's birth. The majority of state courts in the U.S. accept wrongful birth claims as legitimate causes of action stemming from the logic of Roe v. Wade. Since Roe gives women the right to abortion, which includes the right to a dead baby, the right is supposedly violated in wrongful birth cases. Damages awarded to parents range from medical expenses only, to additional costs incurred from raising a disabled child, and even to compensating parents for their emotional suffering.

The plaintiff in a "wrongful life" suit is the disabled child himself or herself, or those acting on the child's behalf. The child, who is born disabled, is judged to be harmed by not having been aborted and so seeks compensation. Relatively few states (approx. three, California, unsurprisingly, being the first) accept these claims, because Roe v. Wade, though establishing an abortion "right" for mothers, establishes no such right for an unborn child.

A "wrongful conception" suit (also called "wrongful pregnancy") is brought when a woman intent on avoiding or terminating her pregnancy becomes or remains pregnant on account of a doctor's failure successfully to prevent or end her pregnancy. This might occur when she gets pregnant despite having a tubal ligation (getting her "tubes tied"), or despite her male partner having a vasectomy. These claims are recognized by a majority of state courts as a direct result of Griswold v. Connecticut and Roe v. Wade (the "rights" to contraception and to choose whether to bear a child). The difference between "wrongful conception" and "wrongful birth" is the former is not based on a child's disability, and compensation is usually awarded only for the costs incurred from the sterilization or abortion, not for having and raising the "unwanted" child.

Pro-lifers argue that when the law rules in favor of a claim that someone who is now born would have been better off dead, its reasoning is perverse. But not all who are opposed to abortion believe that these claims are unreasonable. Some argue that since a doctor has a duty to carry out his services competently; and these cases involve alleged medical incompetence, such as the failure to detect a serious genetic disease in utero; the disabled and their parents should not be deprived of the liberty to bring malpractice claims against negligent clinicians. Moreover, if malpractice laws aim to compensate patients for evident and sometimes life-altering harms that result from negligence; and malpractice in genetic counseling can result in a child being born with devastating disabilities; then would not discarding wrongful birth and wrongful life claims penalize the victims and their caregivers, and reward medical negligence? Finally, since the suits aim financially to compensate disabled children and the parents who care for them; and since severe disability can financially cripple the disabled and their caregivers; would not prohibiting these suits oppose something that's manifestly in the interests of disabled children? Pro-life opposition to these suits seems in effect ironically opposed to the welfare of the disabled.

This reasoning is unsound. Insofar as medical negligence causes grave disability to anyone, preborn or born, it should be justly punished and its victims generously compensated. But it's important to see that this is not what we're dealing with here. The negligent act being penalized in wrongful birth and wrongful life suits does not cause any disability; it merely results in some person not being killed. Does this mean that clinicians who give flawed prenatal genetic diagnoses are without fault? No, but their gravest wrong stems from their formal cooperation in the first place with the abortions they knowingly and willing facilitate by providing genetic counseling. The negligent diagnosis that leads to a person not being killed by abortion can hardly be considered a gravely punishable offense. Think, by analogy, of a concentration camp doctor charged with researching the family trees of the inmates to verify which have forbidden ancestry and which do not; and those discovered to have forbidden ancestry are summarily put to death. If by accidental misreport, an inmate's forbidden ancestry is overlooked, and as a result he is not put to death, would anyone say that laws should be instituted or adjudicated which penalize such doctors' mistakes? We'd say rather that the doctor was already colluding in a gravely unjust system and his negligence in this situation led to a salutary outcome. The law should forbid any type of clinical diagnosis performed with the conditional intent to kill a patient if the procedure results in certain "unwanted" outcomes.

Some may take offense at my analogy saying I've entirely missed the point. No harm is done in having a particular ancestry, but serious harm is done when one suffers from grave disability. But my analogy is meant very strictly and with all seriousness. A diagnosed disability is no more a reason to target one for death than being of a particular ancestry, or race, or gender. In fact, when we have the advantage of knowing that someone will be born with a disability, we have an added imperative to come to his or her assistance. If our community is insensible to the needs of disabled fetuses, we jolly well shouldn't be passing laws that make it a punishable offense to provide information that results in them not being killed. We should pass laws that penalize not providing them the kind of medical assistance they need to be born and to live - even if only for a short time - with dignity.

All communities have a common good, which consists in the good of all its members, born and preborn. The common good requires that benefits and burdens be distributed fairly among members. Members who are unable to secure for themselves the resources necessary to defend and advance their own good - such as fetuses, children, and some elderly - are justly due added care from other members of the community. Disability very often results in one's diminished ability to care for oneself. If this is the case even with disabled adults, it is much more the case with disabled fetuses. Therefore disabled fetuses are due in justice a relatively high standard of care and protection. Precisely what this involves can and should be debated. One thing it never rightly involves is targeting them for destruction. And whereas the law's domain rightly extends to acts of negligence harmful to the common good, clinical mistakes that result in disabled fetuses not being put to death hardly make the cut.