Wrongful Life?

The reason I like reading nonfiction so much is because I feel I learn all kinds of weird, wonderful things reading them books. Take Elizabeth Price Foley’s The Law of Life and Death for instance. The book touches on the concept of wrongful death, something we all may be familiar with from exposure to the O.J. Simpson’s murder trial.

O.J. Simpson has gotten acquitted in the criminal trial for the murder of his ex-wife and her boyfriend but then was charged in a civil trial for having wrongfully caused their deaths. Wrongful death then is the tort equivalent for criminal homicide. Wrongful death and homicide have the same underlying fact — the unnatural death of a person  — but a wrongful death suit is a legal dispute between two private parties, the remedy for which is monetary compensation, whereas homicide is a criminal charge brought by a government for which the punishment is the loss of liberty/life.

So far, nothing new. But have you heard of the concepts of wrongful life, wrongful birth, or wrongful pregnancy? I haven’t until I read Foley’s book, but they’re very interesting, so let me parrot back to you from the tome what they are.

  • Wrongful birth: the charge brought by parents, usually against their medical providers, that the latter had by negligence allowed a birth to happen that should not have. In Smith v. Saraf, the plaintiffs, Mr. and Mrs. Smith “allege that as a result of Dr. Saraf’s negligence in failing to ensure that Mrs. Smith received particular prenatal tests while pregnant with Elijah, Plaintiffs were prevented from discovering that Elijah would be born with a severe birth defect, and thereby deprived of the choice to terminate the pregnancy. Mr. and Mrs. Smith have asserted a claim against Dr. Saraf for “wrongful birth,” which, under New Jersey law, is the parents’ claim for the birth of a severely birth-defective child”.
  • Wrongful life: the claim brought by a disabled child asserting that the medical providers’ negligence “prevented his parents from exercising their constitutional right to use contraceptives or abort the pregnancy. But for the defendants’ negligence, the plaintiff (child) would not have been born. A wrongful life claims thus seeks compensation for being born with disabilities.” The same Dr. Saraf mentioned above was hit with a wrongful life claim by the Smiths’ son.
  • Wrongful pregnancy: a claim brought by parents against medical providers for negligence in performing sterilization procedures thus resulting in the birth of a healthy but unwanted child. “The essence of the claim is that the parents took reasonable precautions to prevention conception or pregnancy from occurring . . . not not withstanding those precautions, the defendants’ actions resulted in pregnancy or conception. Under this theory, parents have sued physicians who have improperly performed sterilization procedures. They have also sued pharmacists who have improperly dispensed contraceptives as well as the manufacturers of contraceptives that have failed.” See more here.

Pretty crazy stuff, huh? And pretty crazy stuff that I didn’t learn until Foley’s book. I guess we all like stories, but this is the flavor I like my stories to come in.

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