Another lawsuit for Wrongful Life based on the destruction of embryos

About Lawsuits is reporting on a recently filed complaint in the U.S. District Court for the Western District of North Carolina by a couple claiming the defendant's product killed an embryo after it was implanted in the mother as part of an IVF procedure.  The claim is similar to a number of other claims filed against another company making the same claims.  About Lawsuits has the full story here.

You probably remember that last summer a case in Alabama gathered a lot of attention because the court recognized a possible cause of action for wrongful death as a result of the destruction of frozen embryos.  I commented on that case here, here, here and here.

Since then, similar cases have been brought against companies that manufacture the substance in which embryos are kept after they are fertilized but before they get implanted in the mother.  The case filed in North Carolina is one of those.

In the complaint, the plaintiffs argue that a fertilized embryo is a human life and that, therefore, the defendant (FujiFilm) should be held responsible for the wrongful death of their unborn child.

Interestingly, as reported, the story assumes that conception happens when the egg is fertilized, which happens before the egg is implanted.  In other jurisdictions, there is a debate as to whether life begins at that point or whether it begins when the egg is implanted.  Because the egg was implanted in the North Carolina case, that question does not appear to be an issue there.

If you are interested in the question of whether courts should recognize a cause of action for wrongful death of embryos, go read the story here.  It sounds like there are quite a few pending cases and, therefore, there may be interesting decisions coming in the near future.

Alabama case in which state Supreme Court held frozen embryos are "children" for purposes of wrongful death settles and is dismissed

 The lawsuit that led to a highly-publicized Alabama Supreme Court ruling that frozen embryos in a lab count as “minor children,” was dismissed Wednesday after plaintiffs settled their wrongful death claims against the in vitro fertilization (IVF) clinic and Mobile hospital.  Go here for the full story. 

This result is important for the parties, of course, but the more important part of the story was the ruling of the Alabama Supreme Court back in February.  You can read my posts on that decision here, here and here.

More commentary on the Alabama decision on wrongful death of frozen embryos

 A few days ago I posted my comments on the Alabama case deciding a plaintiff could support a claim under the state's wrongful death act based on the destruction of frozen embryos.  See here.

If you have been following the news, you know the case has attracted a lot of attention and I have not been able to keep up with all of it, but I will post a few stories, and let you google (now a verb) the rest.

Frozen Embryos Now Considered Children: Unpacking the Alabama Supreme Court Decision and the Future of Fertility Care  (Lex Blog)

The massive legal fallout from Alabama’s IVF ruling is just the beginning (MSNBC)

Uncertainty looms after Alabama's IVF court ruling (NPR Audio)

Two more clinics in Alabama pausing IVF treatments after court ruling (Politico)

IVF Threatened by Unprecedented Alabama Decision (Bloomberg Law podcast)

My eldest daughter was born through IVF. Here’s what ‘pro-life’ conservatives don’t understand (MSNBC)

Alabama’s IVF Ruling Is Christian Theology Masquerading as Law (The Nation)

The science of IVF: What to know about Alabama's 'extrauterine children' ruling (NPR Audio)

What the Alabama IVF ruling means for parents going through IVF (NPR Audio)

The Alabama Ruling That Could Stop Families From Having Kid (NY Times Audio)

More on the consequences of the Alabama case holding that embryos are "children" for purposes of a wrongful death case

 Yesterday I posted a comment about a recent case in Alabama holding that plaintiffs had a valid cause of action for wrongful death based on the accidental destruction of frozen embryos.  I updated that post soon after I posted it, so if you read it immediately after it was picked up in your news aggregator you may want to go back to read it again because I added a quote from an article by someone else that had some good analysis.

The other part of the equation is the discussion of the possible consequences of the decision for issues outside of the litigation and outside of tort law in general.  That discussion picked up quite a bit today in the news.  Some of those consequences are already coming true:  The University of Alabama has terminated providing IVF care!  The University Hospital is a huge public facility so this decision will affect a lot of patients.  The hospital said they would continue to extract eggs, but they would not fertilize them.

 Here are a few links to articles on the subject.  

The Guardian: "Alabama’s supreme court ruled embryos are ‘extrauterine children’. IVF patients are worried"

MSNBC: Alabama’s embryos ruling is a terrifying preview of another Trump presidency [this link lead to a page that has a video on top; the video is not related to the story; read the article below the video]

NPR (3 minute audio): Alabama's largest hospital says it is halting IVF treatments in wake of court ruling

The Guardian: Alabama university pauses IVF care after frozen embryos deemed ‘children’

Politico: Major Alabama hospital stops IVF treatment after court rules embryos are children

NPR (3 minute audio): University of Alabama in Birmingham pauses IVF procedures due to embryo ruling

The Hill: Alabama hospitals halt IVF after ruling

The Hill:  How Alabama’s frozen embryo decision is shaking the nation: What you need to know

Politico: ‘Another hot potato’: Alabama’s IVF ruling risks political, legal backlash

Alex Wagner Tonight (video segment)

Alabama Supreme Court rules frozen embryos are ‘children’ for purposes of the state's wrongful death statutes -- UPDATED

As you probably have heard by now, the Alabama Supreme Court recently ruled that a group of in vitro fertilization (IVF) patients could sue for wrongful death because their frozen embryos were destroyed while in the defendant's facility.  

The decision has gathered a lot of attention (see links below) and it does have significant consequences, but there are a couple of things that the coverage is not mentioning.  First, the decision is not unprecedented and, in Alabama's case, it is not that surprising since the state's supreme court had already decided (years ago) to recognize a wrongful death claim for the death of a fetus.

Typically, wrongful death statutes state the circumstances under which survivors of "a person" who dies because of someone's negligence can recover.  And, typically, that language ("a person") is subject to interpretation.  Some statutes provide a definition, while in other states courts have had to interpret the meaning of the words or to decipher the intent of the legislature. 

On the issue of who should be considered a person, jurisdictions fall into one of three categories:  (1) those that define a person as someone who is born alive (which requires evidence of a live birth before the death for which the wrongful death suit is brought; (2) those who consider life to begin at conception (Illinois uses this approach in its statute) and (3) those who "compromise" by holding that "personhood" starts at the point of "viability" (usually defined as the point in time when the fetus could survive independently of the mother).

Back in 2011 or 2012, Alabama decided a case adopting the view that life begins at conception.  In that case, the court held that it would be an "unfair and arbitrary endeavor to draw a line that allows recovery on behalf of a fetus injured before viability that dies after achieving viability but that prevents recovery on behalf of a fetus injured that, as a result of those injuries, does not survive to viability."  I wrote about that case here.  Alabama then reaffirmed its decision in 2017.  

And Alabama is not alone in considering this question.  I do not remember how these cases were ultimately decided but I know the question was litigated in  Nebraska.  Also, in 2013 trial court in Colorado dismissed a wrongful death claim for the death of a fetus, and the state's supreme court denied review.   (the links are to my posts at the time the cases were reported).

I wrote a short comment on the issue back in 2015 here and again in 2021 here.

One can say that once the court took the position that there is a right to a wrongful death claim for the death of an unviable fetus, the view of the court is that life begins at conception.  But then the question becomes what constitutes "conception"?  And that is where the question of the distinction between a fetus, a fertilized egg, a frozen embryo and an implanted embryo becomes important.  I have not seen commentary about that, other than in a short article here.  This is the only comment I have seen that makes the important distinction between cases that involve recognizing a cause of action for the wrongful death of a fetus and the recent case related to an frozen embryo:

Embryos don’t just automatically turn into kids. IVF families can go through multiple implants in an effort to get a child. And for this reason, clinics try to successfully fertilize a number of eggs in case of failure. That creates a bunch of embryos that won’t end up being implanted and that probably wouldn’t result in a child even if they were. Without the freedom to get rid of those cells after the fact, IVF is an untenable industry.

This case, by itself, doesn’t get that far. Families who consent to ending the process aren’t going to sue. But the court didn’t limit itself to giving the plaintiffs a cause of action, and instead went on a tear laying the groundwork to expand the state’s criminal laws to not only shut down IVF, but to greenlight the next prosecutor who wants to charge women with murder for having a miscarriage.

You can read the Alabama Court's opinion here.  To read more commentary about the decision, you can go to the links below. 

The Hill

Why the Alabama Supreme Court’s ruling on embryos matters

NPR (4 minute audio)

Politico

NPR

Courthouse News Service

Article on changes to the law in Tennessee on whether the law recognizes a wrongful death action for the death of an unborn fetus

 Over the years, I have posted comments and updates on whether the law recognizes (or should recognize) a wrongful death claim for the death of a stillborn fetus, or even for the loss of a pregnancy at any point in the pregnancy.  Go here for all the stories on "pre-natal torts."  

I am writing about this today because a few days ago I saw a short article on the state of the law in Tennessee which changed recently.  You can read the article here.

Louisiana Court of Appeals rejects wrongful life claims

 About two weeks ago the Louisiana Court of Appeals issued an opinion in which it joins the majority of jurisdictions in rejecting the notion of wrongful life. The case involved a claim brought by the parents of a child born with Down syndrome. They argued that they would have terminated the pregnancy had they been informed of a lab test that showed the child was at risk of being born with the condition. The court affirmed the lower court's dismissal of the claim noting that people with Down syndrome are valued members of society and actively participate in educational, social and recreational activities. 

The case is called Robinson v. Mitchell and you can read the opinion here.

Trial related to destroyed frozen embryos raises interesting questions -- UPDATED again

This story is updated below, at the end of the original post

I just read a story on Courthouse News on a trial in which the plaintiffs are suing the manufacturer of cryogenic tanks that somehow failed causing the destruction of thousands of frozen eggs and embryos, which according to the plaintiffs dashed some families’ only hope of having biological children.

The plaintiffs' claim is for product liability based on the alleged defective design of the tanks.  The defendant, however, is apparently going to argue that the tank's failure was due to the misuse of the product by the Fertility Center which used it.  This is the first interesting point in the case because that argument is essentially claiming that the conduct of the Fertility Clinic was an unforeseeable intervening (and therefore superseding) cause.  

Yet, the most interesting question raised by this case relates to the injuries claimed by the plaintiffs.  The story states that the claims "for the loss of eggs and embryos" were sent to private arbitration.

So, my first question is what is a claim for the "loss of" the eggs and embryos?   I am assuming "embryos" refers to fertilized eggs, while eggs are not fertilized.  If that is the case, there can be no claim for wrongful death for the loss of the eggs in any jurisdiction I know of.  And for the loss of the embryos, there can be a wrongful death claim only in jurisdictions that recognize that life begins at conception for purposes of the wrongful death act.  So I wonder if the claim is not for wrongful death but for something else?  Is it just a contracts dispute then?  I just don' know.

On the other hand, maybe the claim is for emotional distress, but that claim would depend on the jurisdiction's approach to those claims?  If the jurisdiction requires impact, I don't think there is support for the claim, for example.  Also, the facts don't seem to fit a claim for emotional distress of a bystander.  

Since the case is already at trial, I guess these questions were resolved already through motions to dismiss, etc.  But I wonder what the answers are.  

UPDATE May 30, 2021:  Courthouse News is following the trial closely.  This week they published the following stories:

On May 26:  Lab Workers Were ‘Devastated’ by Tank Failure That Destroyed Human Embryos

On May 27:  Tank Manufacturer Accuses Fertility Clinic of Falsifying Data in Frozen Eggs Trial 

June 6: Fertility Patients Describe Sadness and Anger After Freezer Tank Failure

June 9: Jurors Asked to Award $30 Million for Lost Eggs and Embryos

June 10: Jury Finds Tank Maker Responsible for Lost Eggs and Embryos, Awards $15 Million

June 12: Loss of Embryos and Eggs at Fertility Clinic Leads to Groundbreaking Multi-Million Dollar Verdict in California

June 20: $15 Million Verdict Against IVF Cryopreservation Tank Maker Is Big News

New case claims injury based on negligent conduct by fertility clinic

A few years ago I wrote an article criticizing a case in which the plaintiffs claimed to have suffered an injury because, due to the conduct of the defendant, they ended up giving birth to a child of a different race.  (See here.)  I argued that it would be wrong to use someone's race as a measure of injury in a torts claim.

I still believe that to be the case, but a new case has been filed in Connecticut which raises the issue in a slightly different way.  In the case I wrote about, the plaintiffs specifically used race as an element of their injury.  In the new case, the plaintiffs are not doing that.  They are also not using the phrase "wrongful birth" to refer to the basis for their claim.

Should this make a difference? 

The notion of wrongful birth is usually used to refer to a claim that had it not been for the negligent conduct of the defendant the parents would have chosen not to have the child, and that because they did have the child, the defendant should pay for the resulting expenses (and other injuries).  Typically, courts do not recognize recovery for the emotional injury, but might recognize a claim for out of pocket expenses of various types.

In the case I wrote about a few years ago, a white woman provided the eggs and the defendant used sperm from a donor.  The mother had specifically selected the donor to be white.  Instead, the defendant used sperm from a different donor who happened to be African American.  The child born from the procedure is biologically related to the mother but of mixed races.

In the recently filed case in Connecticut, the defendant was supposed to use sperm from the plaintiff/father to fertilize an egg from a donor, so that the child would be biologically related to the father. The defendant used the wrong sperm and thus the couple gave birth to a child who is not biologically related to either one of them and also of mixed races.

Based on those facts, the complaint in the new case simply states that the defendant provided the wrong sperm to the plaintiffs and that the result of the procedure is a child who is not related to the parents at all.  This is the basis for their claimed emotional distress.  The complaint is careful not to use the term "wrongful birth" or to suggest that the race of the child is itself a basis for emotional distress. 

Should the parents in this case be granted a cause of action for the emotional distress if we don't grant one for the parents of a child in the older case?

It seems that the difference comes down to whether the race of the child is the basis of the claim.  Is it?  What do you think?

You can read more about the case in Connecticut here and here.

Alabama Supreme Court reaffirms ruling that recognized a cause of action for the wrongful death of a fetus before viability, adopting view that fetus is a "person" from moment of conception

The Alabama Supreme Court recently unanimously reaffirmed its 2011 ruling that recognized a cause of action for the wrongful death of an embryo even before it was a viable fetus.  In this case, the mother lost her pregnancy during the first trimester, which means the embryo would not classify as "viable," the most common classification used by jurisdiction to determine whether a cause of action for pre natal wrongful death should be recognized.  The case is called Stinnett v Kennedy and you can find a copy here.

The issue of whether to recognize a wrongful death cause of action is not new and many jurisdiction have addressed it.  Yet there are three different approaches to it.  Some recognize a cause of action for wrongful death regardless of the level of development of the fetus at the time of the accident. Typically, it is said these jurisdictions recognize the cause of action from the moment of conception.  Illinois, for example, follows this approach in its wrongful death statute.  Other jurisdictions do not recognize a wrongful death claim for pre natal death at all, finding that for there to be death there has to be life and life begins when the fetus actually survives (however briefly) independently of the mother.  But, the most common approach is to hold that a cause of action should be recognized from the moment when it can be argued the fetus is "viable," meaning from the moment the fetus could survive independently of the mother.

Back in 2011, the Alabama Supreme Court recognized the cause of action in in part by making reference to a state criminal statute law that recognizes homicide of a person to apply to a fetus, regardless of viability.  (This reminds of a scene in an old episode of the popular TV show Law & Order, which addressed whether the law could be interpreted to say that very thing in a state that did not have such a statute.)  The reference seems relevant since wrongful death statutes usually refer to the death of a "person" so courts have to define at what point someone "becomes" a person.  In Alabama, the statute states it applies to the death of a "minor child" but does not define "minor child."

But back to the new case...  So, since 2011, Alabama recognizes wrongful death claims for the death of a fetus since conception.  The issue in the new case, however, challenged the Court's reliance on the criminal statute which is a different question.

The criminal statute recognizes an exception for unintentional "mistakes" by doctors.  This means that doctors can not be prosecuted criminally for unintentional conduct that results in the death of a fetus.  In other words, the legislature decided not to recognize the criminal prosecution of negligent conduct.

Based on this exception to the criminal statute, the defendant in the case argued that since the statute upon which the civil case seems to be based does not recognize criminal liability for negligence, it would be inconsistent to recognize a civil cause of action for the same conduct.

The Court, however, rejected the argument.  The argument would make sense if the Court had recognized the cause of action based on the criminal statute using a "negligence per se" type analysis.  In such a case, it would be inconsistent to impose what could be "ruinous liability" for conduct that legislature did not consider bad enough to impose criminal liability for it.  But that is not the type of analysis upon which the court based its conclusion.  The Court looked to the statute, not as an expression of a duty in tort law, but merely for guidance to define the word "person."

Court dismisses complaint for wrongful birth against sperm bank in case in which mother claimed damages because her child was not white

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. 

60 minutes segment on genetic testing

Last night the TV show 60 minutes had a segment on issues related to genetic testing.  It did not discuss torts, but it did touch a little bit on some of the bio-ethics issues I mentioned in my comments on the sperm donor case.  If you can't see the video below, you can go to here to watch it, to watch other videos or to read a transcript of the show.

UPDATE:  I tried embedding the video several times and it is not working properly, but if you click on the little square icon on the lower right hand side, the video will switch to full screen and you can see it there, or, like I said, you can go to the 60 minutes website.  Sorry about that!  Also, the video includes at least one commercial.  If I could edit it out, I would but I can't.. so sorry about that too...

Final thoughts on the sperm bank case

About two weeks ago, Jennifer Cramblett filed a complaint against a sperm bank alleging that the defendant mistakenly gave her vials of sperm from an African-American donor even though she had specifically requested the sperm of a white donor with blond hair and blue eyes. Ms. Cramblett was four or five months pregnant when she was informed about the mistake and decided to take the pregnancy to term. Eventually, she gave birth to a healthy child of mixed races. Now, two years after the birth of the child, Ms. Cramblett has sued the sperm bank arguing she should be compensated for the wrongful birth of the child. Since the child in question does not suffer from any medical condition, disability or birth defect, the plaintiff is, in essence, asking the court to recognize a claim to compensate for her emotional distress at having to care for a child she would have rather avoided because she is not the child she wanted. And she is not the child she wanted solely because of her mixed race.
 
If you haven't read my previous comments on the case you should go here for the first one and here for the second one.
 
In my first post, I argued that the court should not extend the concept of wrongful birth to apply to a claim where the injury is not based on a medical condition of the baby. Otherwise, the court would be forced to pass value judgment on the relative value of a person's race. In my second comment, I discussed the possibility of arguing the case using a different cause of action, but concluded the claim should fail for essentially the same reason. Race is not a disability for which the law should recognize a remedy in tort law.
 
In other words, in those posts I argued that the cause of action should not be recognized under the currently applicable state of the law. Having discussed that, though, now I will turn to a different and broader question: to what extent should modern reproductive technologies change the way we think about "injuries" for purposes of tort law?
 
The history of the notion of wrongful birth itself is a good illustration of how societal attitudes toward reproductive rights and practices affects the way we think about torts remedies. The first wave of wrongful birth claims were universally rejected because the defendant physicians did not cause the birth defects or disabilities suffered by the children born to the plaintiffs. However, after it was recognized that women had a legally protected right to terminate a pregnancy, the courts changed the approach. Given the change in attitudes toward women's rights, the approach to the claim changed to whether the conduct of the defendant deprived the mother of the right to terminate the pregnancy. Based on that new approach, courts began to recognize the availability of a remedy in tort for the wrongful birth of a child with medical conditions that could have been avoided by preventing the birth in the first place.
 
The technology available to facilitate reproduction has also changed over the years. Intrauterine insemination is now commonly used by people seeking to have children but who, for any number of reasons, would prefer not to, or can't, achieve a pregnancy "the old fashioned way."Thus, just like after the recognition of the right to terminate a pregnancy, through the use of modern technology, women or parents can exercise a degree of control over the process of reproduction that was not possible a few decades ago. They can search for and select specific donors to avoid certain genetic mutations or possible health risks, for example. But this also means they can select specific donors to increase the chances their children meet other specifications.
 
How comfortable are we as a society with the idea that parents who choose sperm donors have the right to select specific traits or components to increase the chances that the child would turn out to look a certain way?
 
The question is important in the context of the Cramblett complaint because what makes the Cramblett case different, again, is that the reason for the complaint was not the child's hair color but her race. Some find it offensive that the basis of the mother's complaint is the child's race. I, myself, am the father of two ethnically mixed children and find it difficult to hear someone say that my children's ethnicity should be considered to be the equivalent of a disability or birth defect or that their existence should somehow be considered to be an injury to me.
 
However, there is an important difference between my children and Ms. Cramblett's daughter. My wife and I knew our children would be mixed. There was no way around it: my wife's ancestry is Irish-Norwegian-American, mine is Latin American. We wanted children and knew what to expect.
 
Jennifer Cramblett and her partner, on the other hand, had the opportunity to plan a child through a very different process. They had the chance to choose from an array of possible donors, each with different characteristics in order to pick the ones they wanted. They, in fact, had the chance to shop around for the specific genetic material they wanted. They wanted a specific type of child, of a specific race, with specific hair and eye colors. And they had a right to expect that the defendant sperm bank would deliver the right components. There is no guarantee that the child born to the process would be exactly what they wanted, but by using the desired components they could certainly improve the chances of getting the desired result.
 
It is the possibility of managing the process of reproduction that way that allows the plaintiff to have the chance to blame someone for the fact that the child did not turn out to be what she wanted. If we as a society are ready to accept that the reproductive process can be controlled by the parents in a way that allows them to essentially manufacture children to meet certain specifications, shouldn’t parents have the right to recover compensation when the result is not what they expected? Does that difference in the reproductive process justify recognizing a cause of action in tort for what they claim is an injury because of the child's race?
 
I don't think so because I just can't get around the fact that the claim is asking the court to pass value judgment over the value of living life as a member of a certain race, which is, in turn based on the notion that the child should not have been born. Maybe the plaintiff can support a claim for breach of contract, but that is a different matter.
 
As usual, however, I am open minded and willing to listen to the arguments. I am willing to be convinced. But right now, I have not heard any argument that would change my mind. If you have one, please send it my way.

Go here for a final update on the case.
 

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.

Complaint vs sperm bank: Should the court expand the notion of wrongful birth to cover and injury based on a child's race?

By now, you are probably familiar with a complaint filed a few days ago in Chicago by a white mother against a sperm bank alleging that the defendant mistakenly gave her vials of sperm from an African-American donor even though she had specifically requested the sperm of a white donor with blond hair and blue eyes.  (Story here, here, here and here).  After being artificially inseminated with the sperm, the plaintiff found out about the mistake but took the pregnancy to term.  A few months later, she gave birth to a mixed race girl.  Now, two years later, the mother is claiming that having to raise a child of mixed races has caused her emotional distress.  (The case is called Cramblett v. Midwest Sperm Bank and the complaint is available here.)

The complaint includes two counts of negligence, one for "wrongful birth" and one for "breach of warranty" under a specific Illinois statute.  I have been thinking about these claims for a few days and will probably write something longer about them eventually, but here are my first thoughts.  Actually, just one thought: even though the defendant may have been negligent, the claim for wrongful birth should be rejected.  I would allow the plaintiff to recover for some of the economic expenses she incurred, but most of those have been refunded to her already.

The typical "textbook definition" of a tort includes the notion of "a wrong for which the law recognizes a remedy."  Along those lines, one of the first important lessons we learn when studying Torts is that the law, in fact, sometimes does not recognize a remedy for certain wrongs.  Moreover, sometimes the law should not recognize a remedy.  Simply stated, sometimes unexpected, even bad, things happen to good people, and yet there is no remedy, or there should not be a remedy, in tort available to them.  The reasons for this seemingly unfair result vary, but in the end they relate to the fact that sometimes there are other competing values that are more important than providing an avenue for redress.

The issues raised by the recently filed complaint arguing the mother should be compensated for the so-called "wrongful birth" of a child with features different than those she would have preferred is one of those cases.  The court should dismiss the claim and refuse to recognize the cause of action.  Even though many jurisdictions recognize the concept of "wrongful birth," it would be wrong to extend it to apply to the alleged "distress" suffered because of the birth of a healthy child simply because of the child's race.

Let's begin by talking about the warranty claim because when it comes down to it, the claim is essentially irrelevant.  Usually, the term "warranty" is used to refer to a cause of action for strict liability because of an injury caused by a product.  However, in this case, it means exactly the opposite.  The claim is based on the Illinois Blood and Organ Transaction Liability Act, the purpose of which is to prevent plaintiffs from filing claims under a strict liability theory against defendants in the business of providing blood, plasma, organs and other types of products related to human tissue. According to the statue, the imposition of legal liability without fault against such defendants could inhibit the availability of important scientific knowledge, skills and materials.  Given this public policy, the statute specifically precludes strict tort liability claims and limits the possible liability of the defendants to causes of action based on negligence or willful misconduct.  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."

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.  The claim "for breach of warranty" under the statute will only be valid, and survive a motion to dismiss, to the extent the plaintiff can support a claim for negligence.  The claim for breach of warranty is, thus, at best, redundant.

For this reason, the key to the case is the so called "wrongful birth" claim.  This type of claim usually refers to a claim filed by the parents of a child born alive but with a medical condition, birth defect or genetic problem that could have been detected had the defendant not been negligent during the mother's pregnancy.  The claim has been recognized to vindicate the protected right of the mother to terminate the pregnancy had she been told that the expected child was probably going to be afflicted with a serious medical condition.  For this reason, in order to support the claim, the plaintiff would have to assert that had she been given the proper treatment and information she would have, at least, seriously considered terminating, if not that she would have in fact terminated, the pregnancy.  Thus, due to the negligence of the defendant the child was "wrongfully born."  Had the defendant not been negligent, the child would not have been born at all.

Because the basis of the claim is, at least in part, that the parents would have probably acted to prevent the birth of the child, the cause of action is controversial.  However, many courts have attempted to defuse the controversy by limiting the type of recovery available depending on the nature of the injury.  In Ohio, for example, the jurisdiction where the plaintiff in Cramblett actually lives, the Supreme Court has held that only pregnancy and child birth costs are recoverable in a wrongful birth claim.  In contrast, in Illinois, where the plaintiff filed the claim, the courts have decided to allow the recovery of pain and suffering in addition to the types of costs allowed in Ohio and to extraordinary economic costs needed to address the child's medical condition or needs.

In those jurisdictions that allow for some recovery in wrongful birth cases, recovery for extraordinary expenses related to the child's medical condition is common, but recovery for emotional distress is rare.  One issue courts seem to be in agreement, however, is that an award for ordinary expenses related to raising the child is not justified.

The claim filed in Cramblett v. Midwest Sperm Bank is fundamentally different than the typical wrongful birth claim.  The first essential difference is that the child born to the plaintiff in this case does not suffer from any medical condition at all which requires extraordinary expenses.  There is nothing "wrong" with her.  The only thing the plaintiff is claiming is "wrong" is her race.  She is, therefore, implying that the child's race is like the type of disability that would typically justify a wrongful birth claim, and that, for the mother, having a mixed race child is an injury.  However, since filing the complaint, the mother has contradicted herself numerous times in interviews by asserting that the claim "is not about race," an assertion that is clearly nonsense since everything about this case is about race.

Also, although the mother is suing for wrongful birth, the basis of which is the deprivation of her right to terminate the pregnancy and the undesirability of having a child with a serious medical condition or disability, the plaintiff has publicly declared about her daughter that “we love her — she’s dream come true,” and that “[f]or people to think I don’t want this child because of her skin tone is just not the case. It angers me that people would even think I don’t want my child.”  In an interview with NBC News, she also stated that "I don't find any problems with having a mixed-race child."

The problem is you can't have it both ways.  If the child is a dream come true, you can't possible convincingly say that having her has become "an injury" or that she is a disability or that you would rather not have had her.  If you want to recover for the "injury" you claim you have suffered, on the other hand, you can't say she is a dream come true because if she is, you have not suffered the injury you are claiming for.

I believe the mother when she says she loves her child.  The problem is I don't think she understands the implications of the legal claim she is making.  So here is a way to explain the problem.   Let's assume for the moment, as we do in torts cases to argue causation, that the defendant had not been negligent.  What would have been the result?  Since sperm contains the genetic material that makes a child who she is, what the use of the sperm sent by the defendant caused was the birth of that particular child who is now the plaintiff's daughter. If the defendant had not been negligent, the plaintiff would have been provided different sperm – sperm that would have had a different genetic code – and the child that would have been born would have been a different child than the one who was, in fact, born. The child who was born, the one whom the plaintiff now loves and considers a dream come true, would not have been born at all.  That's why the plaintiff's claim, in the end, is based on the assertion that she would have preferred not to have given birth to the child she did give birth to, but rather to a different one – one with blond hair and blue eyes.

Since the child in question does not suffer from any medical condition or birth defect, the plaintiff is, in essence, asking the court to recognize a claim to compensate for her emotional distress at having to care for a child who is not the child she wanted.

As if that was not enough, the complaint is very vague as to the injuries claimed.  It does not explain what is the basis for the requested compensation, so let's try to figure it out.  Here are the allegations:

On August 21, 2012, [the plaintiff] gave birth to . . . a beautiful, obviously mixed race, baby girl. [The plaintiff] bonded with [the daughter] easily, and she and [the plaintiff's same sex partner] love her very much. Even so, [the plaintiff] lives each day with fears, anxieties and uncertainty about her future and [her daughter's] future. [The plaintiff] admits that she was raised around stereotypical attitudes about people other than those in her all-white environment. Family members, one uncle in particular, speaks openly and derisively about persons of color. She did not know African Americans until her college days at the University of Akron.

Because of this background and upbringing, [the plaintiff] acknowledges her limited cultural competency relative to African Americans, and steep learning curve, particularly in [the] small, homogeneous [town she lives in] which she regards as too racially intolerant.

As just one example, getting a young daughter's hair cut is not particularly stressful for most mothers, but to [the plaintiff] it is not a routine matter, because [her daughter] has hair typical of an African American girl. To get a decent cut, [the plaintiff] must travel to a black neighborhood, far from where she lives, where she is obviously different in appearance, and not overtly welcome.

Based on the facts of the case and these allegations, the plaintiff claims that she has suffered "personal injuries, medical expense, pain, suffering, emotional distress, and other economic and non-economic losses, and will do so in the future."  However, there is no explanation as to the nature of the personal injuries, which presumably refers to physical injuries, nor of any of the non-economic damages including the claimed pain, suffering and emotional distress.  Without that information, it is not possible to accurately evaluate the validity of the claim, but let's consider some possibilities:

1.  Emotional distress because of an unwanted birth?  As stated above, the plaintiff has publicly denied that is the case.

2.  Emotional distress due to the fact that the child is African American or of mixed race?  Again, the plaintiff has denied that is the case.

3.  Emotional distress due to the realization that her child is not what she expected her to be?  I am sorry, but that's silly.  Children are rarely what you expect them to be and tort law is certainly not an adequate mechanism to provide a remedy for parental disappointment.

4.  Emotional distress due to the realization that the child's life might be tough due to her race?  Welcome to reality.  If you are not prepared for that because of your ignorance about race relations in this country you should look in the mirror or to your own family to find someone to blame.  And in this case, the plaintiff has done a good job of that.  Part of her complain is based on the allegation that she was brought up in an intolerant culture and was not prepared to parent a mixed race child.  She even implies some of her relatives, including a particular uncle, are racists.

5.  Expenses to help raise the child in a better environment?  The plaintiff has claimed that she wants to be compensated so she can move to a better location to raise her child.  I understand the sentiment, but, again, the claim is based on the notion that having a mixed race child is somehow an injury for which the law should recognize a remedy.  And since the law does not recognize a remedy for ordinary expenses in wrongful birth cases involving children with birth defects and medical conditions, it seems incongruent to recognize such a claim for a child whose only claimed "defect" is that she is of the wrong race.

In addition, in yet another attempt to defuse the controversial nature of a wrongful birth claim, many jurisdictions consider how the benefits of having a child in and of itself offsets the possible difficulties created by the fact that the child has health problems.  In those jurisdictions, the final award granted to the parents would be reduced by an amount equivalent to the emotional benefits of having a child.  In the Cramblett scenario, it can easily be argued that the benefits are high enough to outweigh the value of the claim altogether.  After all, the plaintiff already has declared publicly that both her and her same sex partner love their child, that they did not have much of a chance to get pregnant without the use of artificial insemination, that they wanted to have a child, that they do not have a problem having a mixed race child and that they think the child is a dream come true.  More importantly, the awakening to a different reality and the exposure to cultural differences are likely to (or hopefully should) help the plaintiff and her partner grow as people and become more understanding and tolerant themselves.  Again, if having the daughter is a dream come true, how can she represent a source of compensable pain and suffering at the same time?

6.  Emotional distress over parenting in general?  In the complaint, the plaintiff alleges she suffers from fear and anxiety about her own future, as opposed to that of the daughter.  Should the plaintiff be compensated because the situation has caused her mental anguish in general?  The problem with that claim, which seems to be what the plaintiff is claiming because the complaint has no explanation of the basis for the distress, is precisely that there needs to be an explanation.  The complaint claims that "[r]aising a mixed-race daughter has been stressful."  I am sure this is true, but the fact of the matter is that life is stressful.  Parenting is stressful.  Living life vicariously through our children, seeing them struggle, make mistakes, get picked on, grow up, try and fail, try and triumph, you name it ... all of it is stressful.  And, in the plaintiff's case, the reason for that stress as alleged is the daughter's race and the only way to argue that the defendant caused that stress is to argue, again, that she should have been white which is another way of arguing that she should not have been born.  Try explaining that to the daughter.

7.  Emotional distress because the plaintiff is not well equipped to be a parent to a mixed race child?  The plaintiff argues that she has had trouble dealing with a steep learning curve on how to care for her daughter.  After all, her hair is so different it requires an inconvenient drive to a an all-black neighborhood!  (By the way, I can relate to that argument.  For a number of years, my wife complained about having a hard time finding a place to get my daughter's hair done too.)  That is an interesting argument, but it is not new and it has been rejected when argued in a different context.

In a famous case in which the plaintiff was the child, the argument was made from the child's perspective.  The New Jersey Supreme Court referred to it as a claim for an "impaired childhood," the gist of it being that given the defendant's negligence, the parents were not prepared to handle the difficulties involved in raising a child with disabilities.  As a result, the plaintiff argued that the parents had not been able to provide adequate parenting which constituted a compensable injury to the child.  The court rejected the argument concluding the notion was just as objectionable as a claim based on the notion that the child should not have been born at all.

Are there any other possible claims, or other ways to justify the claims?  Please let me know if you think I am missing something.

Finally, one aspect of the complaint very few people seem to be paying attention to is the effect that recognizing the cause of action would have on the daughter.  (Here is one article that does address the issue.)  She is obviously too young to understand what is happening right now, but if the case drags on for years, and even if it doesn't, at some point she will be mature enough to know and understand.  The mother has stated she will explain the case to her in the future.

How can we explain to the daughter that we should we recognize a cause of action based on the fact that her mother thought she was the equivalent of a genetically defective or disabled child because of her race?  Is that a value we want to advance through the use of tort law?

The causes of action for wrongful life and wrongful birth have been criticized for creating a demoralizing and demeaning image of life with disabilities as a life that is worth less or that is not worth living at all.  What message would it send to recognize a claim based on the notion that a child is a disability because of his or her race?  Exactly what does recognizing the claim indicate regarding the value of life as an African American or any other minority in American culture?  Who wants to explain that to the child?

Sadly, it seems very ironic to me that by filing the complaint in this case, the plaintiff-mother is embracing the same bias or prejudice she claims she wants to prevent her child to be exposed to.  As has been argued elsewhere, "[d]ealing with [the daughter's] blackness has become burdensome and inconvenient for the[ ] two white mothers — because the biracial baby completely upended their decades of enjoying the spoils of white privilege," and I am not sure that it is a good idea to use tort law to create a remedy for that.

The court should not extend the notion of wrongful birth to apply to a claim where the injury is not based on a physical condition but only on the race of the baby.  Otherwise, the court would be forced to pass value judgment of the relative value of a person's race.

Continue reading my thoughts on this case here.

Illinois Appellate Court reaffirms that there should be no cause of action by (or on behalf of) child against mother for injuries caused by mother during pregnancy

In 1988, the Illinois Supreme Court refused to recognize a cause of action by a child born with injuries caused by the negligence of the child's mother while she was pregnant.  See Stallman v. Youngquist, 125 Ill. 2d 267 (1988).  The court declined to recognize a legal duty on the part of a pregnant woman because the recognition of such a legal duty would create an environment wherein "[m]other and child would be legal adversaries from the moment of conception until birth."  It also reasoned that recognizing such a claim would allow the state to unduly interfere with a woman's right to autonomy during the pregnancy.
In a decision issued about three weeks ago, the Illinois Appellate Court reaffirmed this reasoning in a case that involved a pregnant woman who allegedly negligently caused the death of her own fetus.  Even though, by statute, Illinois recognizes the right of the next of kin to claim for the wrongful death of a fetus, the court found that this right could not be claimed against the mother.  The case is called National Railroad Passenger Corporation v. Terracon Consultants, and (for now) you can find a copy of the decision here.

In this case a pregnant woman was involved in an accident with a train.  As a result she died, which also resulted in the death of her fetus.  After settling claims for the wrongful death of the mother and fetus, one of the defendants sued the mother's estate in contribution claiming the mother's negligence was a cause of the fetus' death.  The plaintiffs then tried to distinguish Stallman by arguing that Stallman was not a contribution claim.  In response, the court correctly affirmed the lower court's dismissal of the complaint based on the principles expressed in Stallman, staing that 

We are not persuaded by the plaintiffs' argument that the public policy considerations discussed in Stallman−which . . .  involved a fetus subsequently born alive−do not apply equally when the fetus does not survive. As the defendants point out, declining to recognize the applicability of the Stallman holding to situations where a fetus does not survive the injuries allegedly inflicted unintentionally by the mother of the fetus would create the paradoxical and potentially unjust situation wherein a fetus that did not survive its injuries could bring a claim against its mother, but a fetus that did survive its injuries could not. We agree with the defendants that duty should not hinge on the nature and extent of the injury involved. The Stallman court declined to recognize a legal duty on the part of a pregnant woman, during her pregnancy, to "guarantee the mental and physical health of another" at birth, because the recognition of such a legal duty would create an environment wherein "[m]other and child would be legal adversaries from the moment of conception until birth." Stallman v. Youngquist, 125 Ill. 2d 267, 276 (1988).  

In accordance with this reasoning, and the other thoughtful and compelling public policy reasoning put forward by the Stallman court ..., we believe the court likewise would have rejected the idea that a pregnant woman has a legal duty, during her pregnancy, to guarantee that her fetus will survive to birth, as that too would create an environment where mother and child were legal adversaries during the pregnancy. Accordingly, although we recognize that the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2008)) itself does not specifically prevent an unborn fetus from asserting a claim against an allegedly negligent mother, we hold that the recognition of a cause of action for wrongful death asserted by an unborn fetus against the mother of the fetus would be incongruent with the reasoning underlying the Stallman holding that there is no duty on the part of a mother to her unborn fetus. Therefore, we decline to recognize such a duty and such a cause of action.

I think the court here reached the correct result.  It can certainly be argued that pregnant women have a moral duty to exercise reasonable care to prevent injuries during pregnancy, but the question is whether that moral duty should be a legal duty, a violation of which can be vindicated through tort law.  I happen to think Illinois has reached the correct decision on this issue, for the reasons explained in Stallman and in Remy v. Mcdonald, 801 NE2d 260 (Mass 2004).

Illinois Appellate Court decides parents can recover extraordinary expenses in wrongful pregnancy action

Last month, the Illinois Court of Appeals, First District, issued an opinion in an interesting case on the character of the compensation that can be recovered in a wrongful pregnancy case. I think the case reaches the correct result, and I am sure it will eventually reach the state supreme court.  The case is called Williams v. Rosner and you can read the opinion here.

The facts of the case are relatively simple. Knowing there was a good chance that her children could be born with sickle cell disease, a woman had a doctor perform a procedure to prevent her from getting pregnant. Eventually, however, she did get pregnant and gave birth to a daughter who suffers from sickle cell disease. Arguing the doctor was negligent, the woman and her husband sued seeking compensation for their injuries including compensation for the extraordinary expenses that they would incur in raising their daughter.  The defendants filed a motion to dismiss arguing the plaintiffs could not recover for extraordinary expenses.

In Illinois, unlike in some other states, parents who seek to recover compensation for a pregnancy that they had sought to avoid (typically referred to as a "wrongful pregnancy" or "wrongful conception" case) have been limited to recover costs associated with the unsuccessful operation, the pain and suffering involved, any medical complications caused by the pregnancy, the costs of delivery, lost wages,and loss of consortium.  In part, this view is based on the notion that the birth of a normal healthy child should not be judged to be an injury to the parents.

On the other hand, Illinois has recognized the right to recover for extraordinary expenses in "wrongful birth" cases.  In these cases, the parents allege that they would not have conceived a child or carried their child to term but for the negligence of the doctor who administered neonatal testing or genetic testing and failed to counsel them of the likelihood of giving birth to a physically or mentally impaired child. In such cases, parents can recover extraordinary damages, including the medical, institutional and educational expenses that are necessary to properly manage and treat their child's congenital or genetic disorder up to the age of majority.

In Williams, the plaintiffs argued, correctly in my view, that if we apply basic torts principles, they should be allowed to recover extraordinary expenses.  A defendant in a negligence action should be liable for those injuries which are foreseeable consequences of the negligent conduct.  For this reason, if the pleadings establish that the birth of the sick child is a foreseeable consequence of a negligently performed sterilization procedure, then wrongful pregnancy plaintiffs should be able to obtain an award of extraordinary damages.  And this is precisely what the court of appeals held.

If we are going to recognize the right to recover for extraordinary damages in wrongful birth cases, it would not make sense not to recognize them in wrongful pregnancy cases.  Stay tuned.

Now, having said all that, the case creates an anomaly that should be corrected.  Assume Mom and Dad Parents decide not to have any more children because of financial reasons.  They simply can't afford another child. They go to the doctor and inform the doctor of the reason for wanting a sterilization procedure.  The doctor is negligent and the parents have another child.  The child is healthy but the parents (and the child) suffer hardship because they don't have enough financial means.  According to the current state of the law, those parents can't recover for that hardship.  They can't recover the cost of raising that child, which is precisely the value of the foreseeable consequence of the negligent conduct of the doctor.  In contrast, according to the court in Williams, the parents of a child with an inherited condition can recover because that is the foreseeable consequence of the negligent conduct.

I think the issue in both cases is the same and the cases should lead to the same result.  Thus, eventually, when Williams gets to the Illinois supreme court, I hope the court takes the opportunity to overrule the old case in which it limited recovery in wrongful pregnancy cases.

Colorado Supreme Court refuses to decide case on whether to recognize a wrongful death case for the death of a fetus

The Colorado Supreme Court has rejected a petition to review a case on whether to recognize a cause of action for the wrongful death of a fetus.  The case was originally filed by the widower of a pregnant woman who allegedly died because of the defendant's medical negligence.  The woman was pregnant with twins at the time.  The husband sued for the wrongful death of his wife and the two stillborn fetuses.  The lower court, however, dismissed the claims for the fetuses holding that "under Colorado law a fetus is not a 'person.' "  The case was appealed to the Colorado Supreme Court which just denied review.  You can read more about the story here.

I wonder why the Court denied review.  This is not only not an uncommon issue which has been addressed in many other jurisdictions, it is also very interesting and important.  Some jurisdictions have adopted the view that the state of gestation is irrelevant, and thus that there can be a wrongful death claim.  Others say that for there to be a death there has to be life first and that life begins at birth.  Most, however, compromise somewhere in the middle holding that there can be a claim as long as the plaintiff can show the fetus was viable at the time of the incident. 

Colorado Supreme Court may be the next to decide whether to recognize a claim for the wrongful death of a fetus

As you may remember, about a year ago, the Alabama Supreme Court decided in a case called Hamilton v. Scott that a parent may bring a wrongful death lawsuit on behalf of a stillborn child that was incapable of life outside the womb.  See here. Then, last November, a new lawsuit was filed in Nebraska asking the court to recognize a claim for the wrongful death of a fetus for the first time in that state.  See here.

Now comes news that a case in Colorado is raising the same question.  As so often happens in cases that raise this question, the wrongful death statute refers to the death of a person and the defendant is arguing that a fetus should not be considered to be a person.  What's a bit unusual about the argument in that particular case is that the defendant is a Catholic hospital.  The case was dismissed initially when the court interpreted the word "person" to include only someone who had been born, but the plaintiffs recently filed an appeal before the Colorado Supreme Court.  The Denver WestWord News has more on the story here.

The facts, as you would expect, are tragic.  In a nutshell, a pregnant woman went to the hospital with shortness of breath where eventually she died.  The hospital staff did not conduct an emergency C-section believing the twins the woman was carrying had died too.  Having consulted experts, the husband has now filed a claim alleging malpractice.

Evidently, the case raises an important issue that has been addressed by other jurisdictions.  Currently, the majority view seems to be that a cause of action is allowed if the plaintiff can show the fetus was viable at the time of the incident, while a few jurisdictions recognize the cause of action regardless of the state of gestation and a few others which do not recognize the cause of action unless the child survived independently of the mother before dying.

NOTE to my current students: this is a topic we will cover in detail later in the semester.

Wrongful death of a fetus

Just days after we finished discussing pre-natal torts in class, comes news that a lawsuit has been filed in Nebraska asking the court to recognize a claim for the wrongful death of a fetus for the first time.  At issue in the case is the applicability of a state statute that extended legal protections to fetuses at any stage of development.  Although the law is not a wrongful death statute itself, the plaintiffs are arguing it should be taken into account when deciding the wrongful death case.  For more on this story go to The San Francisco Chronicle and the ABA Journal.com.

The issue, of course, is not new.  You may remember that last February, the Alabama Supreme Court decided in a case called Hamilton v. Scott that a parent may bring a wrongful death lawsuit on behalf of a stillborn child that was incapable of life outside the womb.  See here.  And, as you may also know the wrongful death statute in Illinois recognizes a claim for the wrongful death of a fetus.  It is not clear whether this is a majority approach or even a "trend" among jurisdictions.  Last time I checked, the majority view on this subject was to "draw the line" at viability.  The third option, followed by another minority of states, is to recognize the wrongful death claim only if the child is born alive, survives for an instant on his or her own and then dies.  Those states draw the line at birth.