§ 9.3 Wrongful Life Theories and the damages dilemma
The concept of wrongful life as a compensable injury was unknown to the law until recent decades, and it is now the subject of considerable controversy. A wrongful life claim is a claim brought by a person who asserts that having been brought into existence with some sort of disability (social, mental, or physical) due to the negligence of another is a compensable wrong. Typically, the plaintiff is claiming that the defendant(s) could have prevented his or her being conceived with the disability by advising his or her parents of the potential harm either before conception or during pregnancy. Such claims must be distinguished from "wrongful birth" claims that are typically brought by the parents of a child rather than the child, and such parental claims have received somewhat more favorable consideration by the courts.
Most wrongful life claims have been brought against medical professionals or institutions. However, there is, at least in theory, a potential claim against a parent (as illustrated by the 1963 Illinois case discussed below), and at least one court in dictum has stated that an impaired child could assert a claim against a parent who decided to continue to bear a child even after learning the child had a serious fetal defect.11
The case law dealing with wrongful life claims in the context of ART is slight, but a review of the law developed to date outside of that context may be helpful in understanding how judges may react to wrongful life claims arising out of assisted reproduction cases.12 Examining a few illustrative decisions, we can conclude that claims for general damages for the existence of the plaintiff's life itself (even with defects) are not likely to be looked upon favorably by the courts. On the other hand, some courts have expressed a willingness to permit special damage claims intended to provide medical, educational, or other specific costs to deal with the disability.
A much-noted decision of an Illinois appellate court in 1963 was the first decision to comment on the wrongful life theory with approval, although the court declined to recognize it as a common-law tort. In Zepeda v. Zepeda,13 a child born out of wedlock sued his biological father, who had seduced and impregnated his mother, asserting that his conception and birth stigmatized him as an adulterine bastard and deprived him of the legal and social benefits of being the child of a legal family. While the opinion of the court recognized that the defendant's reckless use of his procreative power placed the plaintiff under a permanent disability, the court was unable to reconcile his claim for damages with the fact that the very essence of his complaint was that he existed. The court had sympathy with the plaintiff's claim, but was unable to conclude that his very existence was a compensable wrong. However, the court took note of the growing use of ART to bring children into existence and warned that wrongful life claims could arise from the use of that technology:
The present case could be just a forerunner of those that may confront the courts in the future. Without stimulating them, we may have suits for wrongful life just as we have now for wrongful death. Cases are appearing in the domestic relations field concerning children born as a result of artificial insemination. Will there be public sperm banks such as the blood banks we now have? . . . How long will it be before a child so produced sues in tort for those responsible for its being. . . . If there are public sperm banks in future years and if there are sperm injections like present-day blood transfusions, with donors and donees unknown to each other, will there be a basis for an action for wrongful life? . . . In the event it becomes possible to produce departures from normally-to-be-expected, inheritable qualities, would an action lie for wrongful life by a victim of intentional gene mutation who was dissatisfied with the result?14
Early in the wrongful life debate, the Supreme Court of New Jersey laid down a marker that, in regard to claims of general damages, has found widespread acceptance. In Gleitman v. Cosgrove,15 a child born with birth defects claimed that the defendant physician failed to warn that the pregnant mother's contracting of rubella (German measles) could result in the child being born with birth defects. The child claimed that the defendant physician's failure to warn of the risk of birth defects prevented the mother from considering an abortion to terminate the pregnancy.16 In rejecting the wrongful life claim, the New Jersey court said that it could not "say what defects should prevent an embryo from being allowed life."17 One judge characterized the "infant's complaint is that he would be better off not to have been born,"18 which has become a common legal basis for a court's refusal to allow general damages in wrongful life cases. A distinguished legal treatise has...
