Thursday, October 9, 2014

More thoughts on the complaint against the sperm bank

In my previous post, I argued that a cause of action for "wrongful birth," if it should be recognized at all, should not be extended to provide compensation for the alleged emotional distress suffered due to the birth of a healthy but unwanted child.  I used the term "unwanted child" on purpose although the plaintiff in the case did not because my analysis of the claim leads logically to the fact that that is really the underlying argument upon which the plaintiff's claim is based.

Now I am wondering if the plaintiff has created an argument that is difficult to defend mostly because of her attempt to categorize her claim as a wrongful birth claim.  If the real cause for the injury is the fact that the mother has suffered an injury she would rather have avoided, her claim may be more akin to a preconception tort.  I think the claim would fail too, but it worth exploring the possibility.

A "wrongful conception" or "wrongful pregnancy" claim is a term usually used to refer to a claim by parents for the costs of raising a healthy but unwanted child.   Typically, the claim arises when parents who had decided they could not afford more children find out they will have another child due to a negligently performed procedure to prevent future pregnancies.

Although the factual scenario is different, it could be argued that the allegations in Cramblett are more analogous to this type of case than to the typical wrongful birth claim.

Granted, in Cramblett the mother was trying the have a child, while in a wrongful pregnancy case the parents had been trying to avoid having a child, but in both cases what's important is what happens after the parents find out they are going to have a child.  In a typical wrongful pregnancy case, the parents decide to take the pregnancy to term and keep the child.  Likewise, in Cramblett after the initial shock at the news related to the wrong sperm, the mother decided to do the same.

In both cases, the child is then born healthy and the parents welcome the child into a loving (if not necessarily ready for it) family.  In the typical wrongful pregnancy case, the lack of readiness is due to the financial stress on the family, which is precisely what the family had tried to avoid by seeking the pregnancy prevention procedure in the first place.  In Cramblett, the mother claims emotional distress due to not being ready (or capable) to deal with the stress of caring for a child of mixed races.

In both cases, therefore, the baby is not actually "unwanted" once he or she is born, but presents a burden on the parents.  It is for the value of that burden that the plaintiffs are now seeking compensation.  In a typical wrongful pregnancy case, the burden is purely financial.  In Cramblett, however, it is emotional.

Given these similarities, should the mother in Cramblett have argued the case by analogizing her situation to a wrongful pregnancy case?

I think the argument is better than the one based on the "wrongful birth" label, but, unfortunately, the law is not on the plaintiff side - or at least not in Illinois.

First of all, it should be noted that jurisdictions are split over the type of recovery that should be allowed in wrongful pregnancy cases.  In some jurisdictions, parents are allowed to recover for the ordinary expenses needed to raise the child to the age of majority.  After all, those were the expenses the parents were trying to avoid by seeking the defendant's services in the first place, and the expenses that are reasonably foreseeable if the services are negligently performed.  But the majority view seems to be that the recovery should be limited to the expenses related to the negligently performed procedure, the pregnancy and the delivery/birth of the baby itself.  Courts are also split on the issue of whether parents should be allowed to recover for emotional distress due to the birth of the child.  Finally, even in some jurisdictions that would allow some recovery, the recovery can be reduced (some say "offset") by an amount equivalent to the inherent benefits of having a child.

Illinois follows the majority view.  Parents seeking to recover compensation for a pregnancy that they had sought to avoid have been limited to recover costs associated with the unsuccessful operation, the pain and suffering related to the operation, any medical complications caused by the pregnancy, the costs of delivery, lost wages, and loss of consortium.  The most recent case in Illinois discussing this issue was decided earlier this year.  In that case, the court for the first time recognized a claim for extraordinary expenses but only because the parents had sought to avoid pregnancy due to a clear risk that their children would have a genetic birth defect.  You can read my comments on that case here and the court's opinion here.

More importantly, the position that the available remedy in wrongful pregnancy cases should be limited is based on the notion that the birth of a normal healthy child should not be judged to be an injury to the parents.  Having a baby, regardless of how stressful it can be, is to be considered "a blessing," so to speak; not an injury.

Having said that, I actually think that courts can easily justify recognizing a cause of action for the ordinary expenses of raising a child in wrongful pregnancy cases.  Arguing that having a child is a joy (which it definitely is - I have two), has little to do with the fact that raising children is expensive.  In other words, it has always seemed strange to me to say that you can "offset" a financial expense with an emotional gain.  If the parents sought the defendant's help precisely to avoid the expense, then the expense is the foreseeable consequence of the risk created by the negligent conduct of the defendant.

However, the approach to avoiding recognizing claims that could create a negative message on the value of parenting (or to limit the type of recovery available) is consistent with my previous argument regarding the possible negative message on the value of one's race.  And it is particularly relevant in a case like Cramblett where the claimed injury related to the birth of the child is almost exclusively emotional rather than financial as in a typical wrongful pregnancy case.  Since the injury claimed in Cramblett is emotional, you can say it is offset by the emotional grain.  As I argued in my previous post, if the child is a dream come true, her birth should not be considered to be an injury because parenting turns out to be stressful because of her race.

For these reasons, even though I see similarities between wrongful pregnancy cases and the allegations in Cramblett, I still think the claim should be rejected. The claim is not that the child presents a financial burden, but an emotional one. The argument is not that the unexpected race of the child will create financial difficulties but that the mixed race of the child will make life more stressful, difficult or inconvenient for the mother.

In the end, it seems to me that the result of the allegation and the consequences of recognizing a claim are the same in that it would require the court to pass some sort of value judgment on the value of race and the value parenting a child of a different race.

Go here for my final thoughts on this case.

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