"Wrongful-Birth" Lawsuits Abolished in Georgia and In Michigan

By Liz Townsend

Courts in Michigan and Georgia have rejected attempts by parents of disabled children to sue doctors who, the parents claimed, failed to discover their babies' birth defects in time for an abortion.

The Michigan Court of Appeals and the Georgia Supreme Court ruled that these "wrongful-birth" lawsuits are invalid under state law. The Michigan appeals court warned that such suits "could quickly slide into applied eugenics and the elimination of supposedly unfit lives," while Georgia's high court held that state law "does not recognize a cause of action for wrongful birth."

Wrongful-birth lawsuits remain legal in 27 states. Doctors such as James Delahunty of New Jersey, founder of the Association of Pro-Life Obstetricians and Gynecologists, have lost suits that claimed they refused or neglected to offer amniocentesis or other diagnostic tests that could have identified babies' disabilities to pregnant women.

Last March Delahunty was ordered to pay $1.85 million to the parents of Michael Imber-gamo, a four-year-old little boy with Down syndrome. Michael's parents testified that they would have aborted him if they had discovered his condition before birth, the Washington Times reported.

"Some women want to kill their children because they are handicapped," said Delahunty, according to the Times. "If genetic tests give them wrong results, they blame the doctor. I was blamed."

Delahunty's lawyer said that wrongful-birth lawsuits are a product of technology that can more easily identify disabilities in unborn children. "Patients who had disabled children in the past didn't think of suing the doctor," Tom Chamsky told the Times. "But as technology has grown, some women think that their child's disability is someone else's fault."

Both the Georgia and Michigan cases concerned babies whose disabilities were not identified by doctors from ultrasound tests.

The Georgia case involved the son of Andrew and Jennifer Etkind, who was born with Down syndrome in September 1995. According to the Georgia Supreme Court's July 8 decision, Dr. Ramon Suarez told Jennifer Etkind (who is also a doctor) that her baby "was developing normally and that she was not at risk for birth defects" after two ultrasounds and a blood test, and advised against the more invasive amniocentesis procedure. Dr. Etkind did not have an amniocentesis.

After their son was born with Down syndrome and a malformed heart, the Etkinds sued Suarez. According to the court decision, the Etkinds asserted that "but for the treatment or advice provided by the defendant, [they] would have aborted the fetus, thereby preventing the birth." The Etkinds sought to have Suarez pay for the costs of raising their son, the Atlanta Journal-Constitution reported.

The Georgia Supreme Court had previously abolished wrongful-birth lawsuits in the 1990 Atlanta Obstetrics & Gynecology Group v. Abelson decision. The Etkinds asked the court to overturn Abelson on several grounds, including constitutional and due process concerns. However, the court, by a 6-1 majority, rejected all their arguments, ruling that "Georgia tort law does not recognize a cause of action for wrongful birth."

The Etkinds' main contention was that Dr. Suarez's failure to identify the baby's Down syndrome "interfered with their choice of whether to have an abortion" and that the ban on wrongful-birth suits also stands in the way of the abortion "right," according to the court decision.

However, the court insisted, "refusal to recognize wrongful birth, absent authorizing legislation, does not interfere with Dr. Etkind's constitutional right to an abortion."

In a strongly worded decision, the Michigan Court of Appeals rejected the lawsuit brought by the parents of four-year-old Shelby Taylor, who sued Dr. Surender Kurapati for finding "no visible abnormalities" in a December 4, 1993, ultrasound.

According to the June 25 appeals court decision, Shelby was born on April 19, 1994, with a "missing right shoulder, fusion of left elbow, missing digits on left hand, missing femur on left leg and short femur on right," according to the court. Her parents contended that "the failure to reveal the disabilities deprived the Taylors of their right to make a reproductive decision regarding the pregnancy," according to the court decision. They also alleged that Kurapati was liable for the "emotional distress" they suffered when their little girl was born.

Overturning prior decisions that had allowed such lawsuits, the Court of Appeals rejected the Taylors' arguments and ruled that wrongful-birth suits are not valid under state law. The court saw much danger in the theory behind these suits, that parents should be compensated if they were not able to abort a disabled child.

"The very phrase 'wrongful birth' suggests that the birth of the disabled child was wrong and should have been prevented," Judge J. Whitbeck wrote for the 2-1 majority. "If one accepts the premise that the birth of one 'defective' child should have been prevented, then it is but a short step to accepting the premise that the births of classes of 'defective' children should be similarly prevented, not just for the benefit of the parents but also for the benefit of society as a whole through the protection of 'public welfare.' This is the operating principle of eugenics."

The court also rejected the argument that wrongful-birth lawsuits are required to ensure the "right" to abortion that was legalized in Roe v. Wade. Whitbeck wrote that Roe allows the "state to make a value judgment favoring childbirth over abortion." For example, previous courts have found that the Michigan Consti-tution does not require the state to fund abortions, but Michigan does provide financial support for childbirth.

"As the state has no obligation to affirmatively aid a woman in obtaining an elective abortion by paying for it," Whitbeck wrote, "the state similarly has no obligation to take the affirmative step of imposing a civil liability on a party for failing to provide a pregnant woman with information that would make her more likely to have an elective, and eugenic, abortion."

The Michigan decision called attention to the "slippery slope" that is evident in wrongful-birth lawsuits, a slope that pro-lifers have been warning about for years. "[I]t is but another short half step from the concept of preventing the birth of an 'unfit' or 'defective' child to proposing, for the benefit of the child's overburdened parents and of the society as a whole, that the existence of the child should not be allowed to continue," Whitbeck wrote.

"After all, if that child never should have been born, then that child has no real right to go on living, thereby imposing the costs of the child's continued existence upon the parents and society. This, we conclude, is the logical end of the slippery slope inherent in the application of the benefits rule through the wrongful birth tort."