The Potential Plaintiff

Preconception and Prenatal Torts
  • Margery W. Shaw


It is well established in American law that a fetus is not a “person” in the constitutional sense.1 Personhood occurs at the moment of live birth.2 Fetuses are not counted as U.S. citizens in the decennial census; there is no income tax exemption for the unborn or the stillborn; states are under no legal obligation to provide welfare funds or food stamps for fetuses (although they may, if they wish, increase the benefits of a pregnant woman).3


Down Syndrome Supra Note Unborn Child Wrongful Life Wrongful Conception 
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References and Notes

  1. 1.
    All this,“, persuades us that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” Roe v. Wade, 410 U.S. 113, 158 (1973).Google Scholar
  2. 2.
    The “moment of live birth” is a convenient point in time that can be ascertained easily, witnessed, and verified, whereas the moment of conception, the moment of quickening, and the “period of viability” are impossible to determine with certainty.Google Scholar
  3. 3.
    The U.S. census does not enumerate fetuses. Abelev. Markele, 351 F. Supp. 224, 229, n.9 (Conn. 1972). The U.S. Supreme Court has held that states are not required to provide AFDC benefits for unborn children. Burns v. AIcala, 420 U.S. 575 (1975). But the New York Court of Appeals upheld the state s regulation allowing eligible women to claim AFDC benefits from the fourth month of a medically certified pregnancy. Bates v. Toia, 5 F.L.R. 2004 (N.Y. Ct. App., Oct. 16, 1978 ).Google Scholar
  4. 4.
    Carroll v. Skloff, 202 A.2d 9 (Pa., 1964 ). “If the fetus is never bom, it does not and cannot have an estate from which others may take.” Ibid, at 11.Google Scholar
  5. 5.
    Bonbrest v. Kotz, 65 F. Supp. 138 (D.C. 1946 ). This was the first case allowing recovery for prenatal injuries not resulting in death. See Annot., 40 A.L.R.3d 1220 (1971) for a review of liability for prenatal injuries. Wrongful death actions involving a fetus after viability resulting in stillbirth have met with some success, but since wrongful death actions are purely statutory it depends on the wording or the interpretation of the statute. See Stern v. Miller, 348 So. 2d 303 (Fla. 1977), rehearing denied, for a case where the court held that a viable fetus is not a “person” within the intent of the Florida statute on wrongful death.Google Scholar
  6. 6.
    For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, proscribe abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Roe v. Wade, 410 U.S. 113, 164 - 165 (1973).Google Scholar
  7. 7.
  8. 8.
    See Shaw, M. W., Perspectives on today’s genetics and tomorrow’s progeny, J. Hered. 68: 274 (1977).PubMedGoogle Scholar
  9. 9.
    An excellent review of these cases may be found in Robertson, G. B., Civil liability arising from “wrongful birth” following an unsuccessful sterilization operation, Am. J. L. Med. 4: 131 (1978).Google Scholar
  10. 10.
    Of 51 “wrongful birth” cases involving sterilization failure, reported before mid-1978, 31 arose since 1973. Ibid, at 136.Google Scholar
  11. 11.
    In Bushman v. Burns, 47 U.S.L.W. 2155 (9-12-78), after a failed vasectomy, the parents narrowed their claim to the medical expenses and pain and suffering of pregnancy and delivery and did not claim damages for raising their child. The court designated this case wrongful pregnancy, and stated that any benefits conferred by the child would not be used to offset the damages. See also Coleman v. Garrison, 327 A. 2d 757 (Del. Super. Ct. 1974), … view the action as one for ‘wrongful pregnancy’ rather than one for ‘wrongful life.’ Ibid, at 761.Google Scholar
  12. 12.
    See Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn. 1977 ). “We hold that in cases such as this an action for ‘wrongful conception’ may be maintained….” Ibid, at 170.Google Scholar
  13. 13.
    Terrell v. Garcia, 496 SW2d 124, 128 (Tex. Civ. App. 1973, writ refd nre).Google Scholar
  14. 14.
    Christensen v. Thornby, 192 Minn. 123, 126, 255 N.W. 620, 622 (1934).Google Scholar
  15. 15.
    Ball v. Mudge, 64 Wash.2d 247, 250, 391 P.2d 201, 204 (1964).Google Scholar
  16. 16.
    See Robertson, supra note 9 at 148 for a discussion of the controversial nature of damages in wrongful birth cases. Some courts claim that the intangible benefits of parenthood are difficult or impossible to assess, while other courts conclude that while it is possible to compare the economic burden of rearing a child with the benefits of parenthood, the outcome, in every case, as a matter of law, must be that the benefits outweigh the burdens. Ibid at 148.Google Scholar
  17. 17.
    The Benefits Rule, as it appears in the Restatement of Torts J 920 (1930), states: “Where the defendant’s tortious conduct has caused harm to the plaintiff or to his property and in so doing has conferred upon the plaintiff a special benefit to the interest which was harmed, the value of the benefit conferred is considered in mitigation of damages, where this is equitable.”Google Scholar
  18. 18.
    Mich. App. 240, 187 N.W. 2d 511 (1971).Google Scholar
  19. 19.
    Ibid, at 521.Google Scholar
  20. 20.
    Sterilization is the second most popular contraceptive choice in the United States, just behind oral contraceptives. Westhoff, C. F., and Jones, E. F., Contraception and sterilization in the United States, 1965- 1975, Fam. Plann. Perspect. 9:153 (1977). Over 30% of all married couples in the U.S. had chosen sterilization in 1975. Ibid, at 154.Google Scholar
  21. 21.
    Large awards have been made in some cases. In Bowman v. Davis, 48 Ohio St. 2d 41, 356 N.E.2d 496 (1976), a woman who gave birth to twins after a tubal ligation was awarded $450,000. See Robertson, supra note 9 at 137, note 20.Google Scholar
  22. 22.
    The landmark U.S. Supreme Court decision, Griswold v. Connecticut, 381 U.S. 479 (1965), protects a married couple’s right to use contraceptives. This right was extended to unmarried couples in Eisenstadt v. Baird, 405 U.S. 438 (1972).Google Scholar
  23. 23.
    Reilly, P., Genetics, Law and Social Policy (1977). For an in-depth discussion of genetic counseling with liberal references, see Note, Father and mother know best: Defining the liability of physicians for inadequate genetic counseling, Yale L.J. 87: 1488 (1978).Google Scholar
  24. 24.
    See Estop, S. D., and Forgotson, E. H., Legal liability for genetic injuries from radiation, La.L. Rev. 24:1 (1963), and Comment, Radiation and preconception injuries: Some interesting problems in tort law, Sw. L.J. 28:414 (1974). No long-term studies have yet been reported on chemotherapeutic agents that are known to be mutagenic, so that the risk to the germ cells in the gonads has not been assessed.Google Scholar
  25. 25.
    Vaccaro v. Squibb Corp., 412 N.Y.S.2d 722 (1978), relying on Karlsons v. Guerinot, 57 A.D. 2d 73 (1977).Google Scholar
  26. 26.
    See Howard v. Lecher, infra note 48; Becker v. Schwartz, infra note 49; Park v. Chessin, infra note 28.Google Scholar
  27. 27.
    Renslow v. Mennonite Hospital, 67 I11. 2d 348, 367 N.E.2d 1250 (1977), affg 351 N.E.2d 870 (1976). See Wachsman, H. F., Doctor and hospital sued successfully by child born eight years after injury to mother, Legal Aspects of Medical Practice 6:41 (July 1978), and Grumet, B. R., The ovarian plaintiff, Legal Aspects of Medical Practice 6:44 (July 1978).Google Scholar
  28. 28.
    Park v. Chessin, 387 N.Y.S.2d 204 (Sup. Ct. 1976), affd, 400 N.Y.S.2d 110 (App. Div. 1977), modified, 386 N.E.2d 807 (N.Y. 1978 ). Cohen, M. E., Park v. Chessin: The continuing judicial development of the theory of wrongful life, Am. J. L. Med. 4:211 (1978), provides a survey and analysis of the tort of wrongful life. See also, -Note, Torts prior to conception: A new theory of liability, Neb. L. Rev. 56:706 (1977), for an excellent discussion of Renslow, supra note 27, and Park.Google Scholar
  29. 29.
    Oelsner, Jury clears two doctors of birth-defect liability, New York Times, B, p. 2, col. 1, April (1978).Google Scholar
  30. 30.
    F.2d 237 (10th Cir. 1973).Google Scholar
  31. 31.
    Ibid, at 239. See also Carr, D. H., Chromosome studies in selected spontaneous abortions: Conception after oral contraceptives, Can. Med. Assoc. J. 103:343 (1970). Carr reports that 48% of 54 abortions conceived within 6 months after discontinuing oral contraceptives were chromosomally abnormal compared to 22% of 227 controls. Ibid, at 344. Three out of five abortuses conceived 8 to 12 months later carried one extra chromosome (mongolism is due to an extra chromosome). Ibid, at 345.PubMedGoogle Scholar
  32. 32.
    F.2d at 241.Google Scholar
  33. 33.
    Dietrich v. Inhabitants of Northampton, 138 Mass. 14 (1884), cited and quoted in Z epeda v. Z epeda, 190 N.E.2d 849, 853 (111., 1963 ).Google Scholar
  34. 34.
    Mill, J., On Liberty, p. 22, Henry Holt, London (1859).Google Scholar
  35. 35.
    Winters v. Miller, 446 F.2d 65, 73-74 (2d Cir. 1971), Moore, J., concurring and dissenting; cert, denied, 404 U.S. 985 (1971).Google Scholar
  36. 36.
    Capron, A. M. The continuing wrong of “wrongful life”, Chapter 9, this volume.Google Scholar
  37. 37.
    Tedeschi, G., On tort liability for “wrongful life,” Israel L. Rev. 1: 513 (1966).Google Scholar
  38. 38.
    Cohen, supra note 28, at 231 has argued that an intrafamilial wrongful life suit should be beyond the scope of judicial review since it turns on the moral question of whether the parents’ rights to have a child should be invaded, and this question is protected by the constitutional right to privacy in Griswold v. Connecticut, 381 U.S. 479 (1965) and Roe v. Wade, 410 U.S. 113 (1973).Google Scholar
  39. 39.
    In two cases, illegitimate children brought suit against their fathers, claiming that they had been injured by the stigma of bastardy. Zepeda v. Zepeda, 41 111. App.2d 240, 190 N.E.2d 849 (1963), cert, denied, 379 U.S. 945 (1964) (court refused to allow damages); Pinkney v. Pinkney, 198 So.2d 52 (Fla. Dist. Ct. App. 1967) (cause of action disallowed). In Burnette v. Wahl, 47 U.S.L.W. 2483 (2-6-79), the Oregon Supreme Court refused to recognize a cause of action on behalf of child criminally neglected by his parents, causing emotional and psychological injury. A recent newspaper article reports that a 25-year-old man brought suit against his parents, complaining of “malpractice in parenting” causing him to need psychiatric care. The district court judge dismissed the suit. The Houston Post, $ A, p. 28, col. 1, March 29 (1979).Google Scholar
  40. 40.
    The doctrine of intrafamilial immunity for intentional torts (such as beatings and rapes) and for negligence (such as automobile accidents) has been abandoned in most states.Google Scholar
  41. 41.
    See Shaw, M. W., Genetically defective children: Emerging legal considerations, Am. J. L. Med. 3: 333, 340 (1977).Google Scholar
  42. 42.
    Roe v. Wade, 410 U.S. 113, 183 (1973). This choice, however, is undermined by the unwillingness of some states to provide Medicaid funds for elective abortions. The U.S. Supreme Court has ruled, in Beal v. Doe, 432 U.S. 438 (1977) and Maherv. Roe, 432 U.S. 464(1977), that Title XIX of the Social Security Act does not mandate funding of nontherapeutic abortions, but the court does not speak to the issue of whether states can deny abortions if the fetus is defective but the mother’s life or health is not endangered. In Poelker v. Doe, 432 U.S. 519 (1977), the U.S. Supreme Court held that the Constitution does not prohibit a state from expressing a preference for normal childbirth but the court did not differentiate between normal mother and normal fetus. It was ruling on a policy directive of the mayor of St. Louis and the staff practice of two city-owned hospitals that prohibits abortions except for “grave physiological injury or death to the mother.” A Utah statute, which goes even farther because it limits funding to Medicaid recipients for abortion only when the mother’s life is endangered, was upheld by a federal district court in D.R. v. Mitchell, 456 F. Supp. 609 (Utah, 1978). If a defect in the fetus could have been detected, but abortion funds were denied to the indigent mother, would she or her infant have a cause of action against the state rather than the physician? See Shaw, supra note 41 at 339. The Fourth Circuit Court of Appeals clarified the regulations in Virginia for funding Medicaid abortions by stating that the requirement that a physician certify that the recipient mother’s life was endangered was contrary to the state’s expressed objective of eliminating funding for nontherapeutic abortions. It ordered that the provisions include other factors such as physical, emotional, and psychological health of the mother as well as other familial factors and maternal age. Doe v. Kenley, 47 U. S.L. W. 2275 (10-31-78). Presumably this directive might encompass fetal defects. Medicaid policies in California specificaly allow reimbursement if amniocentesis has shown that the fetus will be born with a severe mental or physical abnormality. Fam. Plann./Popul. Rep. 7:61 (1978).Google Scholar
  43. 43.
    See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976); Singleton v. Wulff, 428 U.S. 106 (1976); and Bellotti v. Baird, 428 U.S. 132 (1976).Google Scholar
  44. 44.
    Ziemba v. Sternberg, 45 A.D. 2d 230, 357 N.W.S.2d 265 (1974).Google Scholar
  45. 45.
    Rieck v. Medical Protective Co., 64 Wis. 2d 514, 219 N.W.2d 242 at 244 (1974).Google Scholar
  46. 46.
    S.W.2d 846 (Tex. 1975).Google Scholar
  47. 47.
    Ibid, at 850. See also, Kass, M., and Shaw, M. W., The risk of birth defects: Jacobs v. Theimer and the parents’ right to know, Am. J. L. Med. 2:213 (1976), for a discussion of the duty of physicians and genetic counselors to keep their patients informed and recent progress in medical genetics and prenatal diagnosis likely to affect future court decisions.Google Scholar
  48. 48.
    Howard v. Lecher, 53 App. Div.2d 420, 386 N.Y.S.2d 460 (1976), affd, 42 N.Y.2d 109, 366 N.E.2d 64, 397 N.Y.S.2d 363 (1977). In another Tay-Sachs case, an amniocentesis was performed but the test results were mistakenly reported as negative. A cause of action was upheld for the parents’ emotional pain and suffering but not for the child’s claim of wrongful life. Gildiner v. Thomas Jefferson University Hospital, 451 F. Supp. 692 (E.D. Pa., 1978 ).Google Scholar
  49. 49.
    Becker v. Schwartz, 400 N.Y.S.2d 119 (App. Div. 1977), modified 386 N.E.2d 807 (N.Y. 1978). This is the only case in which an appellate court has upheld the parents’ cause of action “for the expenses of raising and institutionalizing the afflicted child.” 400 N.Y.S.2d 119 at 120.Google Scholar
  50. 50.
    For a listing of 19 cases where wrongful life claims have been made by the child, see Robertson, supra note 9, at 133, n. 3.Google Scholar
  51. 51.
    See text accompanying note 33, supra.Google Scholar
  52. 52.
    The elements of duty to the fetus, breach of that duty, an injured infant after live birth, and causation of that injury by failure to abort are all present. But see the obstacles discussed in text accompanying notes 36-41, supra.Google Scholar
  53. 53.
    A criminal charge against a heroin addict was brought in California for endangering her fetus by continuing to use heroin during the last two months of pregnancy, which resulted in the birth of twin boys addicted to heroin. The court found that the California Penal Code, $ 273a(l), prohibiting the endangering of a child does not include an unborn child. Reyes v. State, 141 Cal. Rptr. 912, 915, 75 Cal. App. 3d 214, 219 (1977).Google Scholar
  54. 54.
    Of 97 children born to 32 mothers with phenylketonuria (PKU), only 3 had IQ scores above 90, while 56 scored below 70. Perry, T. L., Hansen, S., Tischler, B., et al, Unrecognized adult phenylketonuria: Implications for obstetrics and gynecology, N. Engl. J. Med. 287: 395 (1973).CrossRefGoogle Scholar
  55. 55.
    In a prenatal tort case, an infant was entitled to recover for injuries sustained in an auto accident caused by defendant’s negligence. Judge Proctor stated that “justice requires that the principle be recognized that a child has a legal right to begin life with a sound mind and body.” Smith v. Brennan, 157 A.2d 497, 503 (N.J. 1960).Google Scholar
  56. 56.
    In Raleigh Fitkin Memorial Hospital v. Anderson, 42 N.J. 421, 423, 201 A.2d 537, 538 (1964), cert, denied, 337 U.S. 985 (1964), the court ordered a blood transfusion for a pregnant woman who was a Jehovah’s Witness, to save the lives of the mother and the unborn child.Google Scholar
  57. 57.
    Other examples of state intervention are cited in Shaw, M. W., Procreation and the population problem, N.C. L. Rev. 55:1165 (1977), suggesting that there is a compelling state interest in protecting the welfare of future generations and preventing the birth of children who are destined to be burdensome to the state. Ibid, at 1180.Google Scholar

Copyright information

© Plenum Press, New York 1980

Authors and Affiliations

  • Margery W. Shaw
    • 1
  1. 1.Medical Genetics CenterThe University of Texas Health Science Center at HoustonHoustonUSA

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