Hensel on Wrongful Birth and Wrongful Life Actions

Just out: Wendy Hensel, The Disabling Impact of Wrongful Birth and Wrongful Life Actions, 40 Harv. C.R.-C.L. L. Rev. 141 (2005). From the introduction:

The controversy surrounding wrongful birth and wrongful life litigation has existed for many years and is well documented. The courts faced with these issues have overwhelmingly rejected wrongful life actions while at the same time approving those for wrongful birth. In part, this has occurred because courts have found it more palatable to identify lost parental choice as the injury than to answer the metaphysical question of whether non-existence is ever preferable to life, however burdened. In contrast, many tort scholars who have addressed this issue have concluded that both wrongful birth and wrongful life actions should be permitted to go forward. They reason that both torts correspond well, if not perfectly, with traditional negligence principles.

In the midst of this robust public debate, there is one point of view that has received less attention--that of individuals with disabilities. Although much has been written about the impact of genetic testing as a general matter, surprisingly little legal scholarship has focused on the impact that wrongful birth and wrongful life actions might have on the community of people with disabilities. Often, the consideration tort scholars give to this viewpoint is confined to a discussion about the benefits of providing needed compensation to disabled individuals and their caregivers. Particularly in the wrongful life context, scholars have argued that the theoretical difficulty in identifying "life" as an injury does not outweigh the practical reality of an injured party who needs assistance.

The problematic aspects of wrongful birth and wrongful life actions, however, far exceed the conceptual difficulties that attach to these torts. Wrongful birth and wrongful life suits may exact a heavy price not only on the psychological well-being of individuals with disabilities, but also on the public image and acceptance of disability in society. Rather than focusing on a defendant's conduct, as in a traditional tort action, both wrongful birth and wrongful life suits ultimately focus on the plaintiff's disability, a status that is at least partially a societal construction. Juries in such actions are required to evaluate whether a particular disability is so horrible, from the nondisabled perspective, as to make plausible the choice of abortion or contraconception by the parent, or non-existence by the disabled child. Since only the child's diagnosis is ascertainable at this critical point in time, the centrality of impairment in defining personhood is reinforced and inescapable. Any benefits secured by individual litigants in court are thus taxed to the community of people with disabilities as a whole, placing at risk, in the drive for individual compensation, the gains secured by collective action and identity.

This Article argues that the costs of recognizing wrongful life and birth actions are too high.