Just about a year ago, I wrote about a complaint for the "wrongful birth" of a mixed race child filed in Chicago by a white mother against a sperm bank because the defendant mistakenly provided her with sperm from an African-American donor. I wrote my comments on the case here, here and here and more recently published an article on the subject (available here). I won't repeat all my arguments now - please read the previous comments if you are interested. Suffice it to say I argued strongly that the case should be dismissed.
Given my position, I am pleased to report today that the trial judge has, in fact, dismissed the complaint. There is no question in my mind that this was the correct decision. However, I have not had a chance to see the actual order, and every report I have seen repeats something very odd that caught my eye, something along the lines of "the judge rejected both claims but said that the plaintiff (the mother) could refile the suit as a “negligence claim...”
This makes absolutely no sense to me. The complaint included two claims, one for breach of warranty under the Illinois Blood and Organ Transaction Liability Act and one for wrongful birth. The purpose of the Act is to prevent plaintiffs from filing strict liability actions against certain defendants. Thus, the actions that can be filed under the act, if any, would be based on negligence.
The notion of a "warranty" in such a claim comes from the text of the statue in that it states that those involved in the rendition of any of the services described in the statute "warrants . . . that he has exercised due care and followed professional standards of care," or, in other words, that the defendant was not negligent. This statement means nothing other than what the common law already requires. The plaintiff still has the burden of proof to argue and prove the standard of care and that the defendant breached it. Thus, the statute changes nothing and provides no additional, or different, avenue of relief to a plaintiff than a normal negligence claim. The claim "for breach of warranty" under the statute would only be valid, and survive a motion to dismiss, to the extent the plaintiff can support a claim for negligence.
For this reason, re-filing the claim as a negligence claim would be essentially the same thing as filing the original complaint, which the judge already dismissed! And if it is re-filed, what damages would be claimed? It would have to be the out of pocket economic damages (which have been reimbursed already, and therefore for which there is no claim) and the emotional distress due to the birth of the child, which is another way of arguing the same thing as the wrongful birth claim.
The wrongful birth claim, in turn, is, by definition, a negligence claim. The label "wrongful birth" refers to the type of injury used as a basis for the claim, not as a reference to the theory of liability upon which the claim is based. The theory of liability is negligence. Clearly it is not intent nor strict liability, so what else could it be?
Thus, again, re-filing as a negligence claim would mean refiling the same case!
Why would the judge allow the plaintiff to re-file a claim that the judge has decided has no merit, when re-filing it would only mean the plaintiff will re-argue the same claim again? It makes no sense.
Like I said, I have not seen the actual court order, and maybe the newspapers are wrong in their reporting, but I have seen the same report in the Washington Post and the Chicago Tribune.