Wrongful birth lawsuits seriously rub me the wrong way. I am ridiculously pleased that my disabled son has joined us here on earth. But even if I wished he had never been born, I cannot ever imagine publicly asserting that I wish my disabled son had never been born. I can’t imagine the message it sends to him (although he’ll probably not understand it, but still). Or the message it sends to my other children that my love for them might be conditional on good health. It seems totally counter to everything about the special obligations a mother has to a child.
Some may think that there are some disabilities so severe it might have been better for the child not to have been born at all. That is not what a wrongful birth lawsuit is about. Wrongful birth lawsuits are not lawsuits brought on behalf of the child. They are not an assertion for the child’s sake that the child’s life was not worth living. They are not about the harm of existence to a severely disabled child. Those lawsuits are wrongful life lawsuits, and are disallowed in most places.
Wrongful birth lawsuits claim that the parents are harmed by the birth of their child. They must assert that their lives are worse because their child was born.
I will stress that I do not speak for all parents of kids with special needs here. My husband thinks wrongful birth lawsuits are totally morally legit, and so does my closest friend-mom-with-a-kid-with-my-kid’s-syndrome.
Art Caplan, a famous bioethicist, offers a solution to the wrongful birth problem. Recently, a couple received a false negative on their prenatal genetic testing. The child, now 4, was born with Down syndrome. They sued for wrongful birth, won $3 million, and have been vilified. (I disagree with what the couple did, but the degree of vituperation against them is totally out of line.)
Caplan argues that rather than making parents publicly assert that they would have aborted the child had they known of the chromosomal disorder, these kinds of cases should be handled by arbitration. In that case, the parents don’t have to assert that they would have aborted the child.
It’s an appealing solution on its face. But what are the grounds of awarding money to the parents unless they would have done something different than they did? If the mistake made no change to their actions, then why should they get anything? All Caplan’s solution has done is merely turn an explicit declaration that the child should have been aborted to an implicit one. And the problem remains.