Perry on Wrongful Life Claims

Michael Stein passes along this piece that is forthcoming in the Cornell Law Review and was posted on SSRN by Ronen Perry, entitled It's a Wonderful Life. The abstract:

The title of Frank Capra's classic 1946 movie seems to encapsulate a fundamental all-American conviction. Unsurprisingly, it has been applied by several courts and jurists as the ultimate retort to one of the most intriguing questions in modern tort discourse: Is it possible to say that a severely disabled child has been harmed by the mere fact of being born? Wrongful life claimants will answer in the affirmative, whereas Capra's aphorism makes a compelling counterargument. In my opinion, the contrasting views represent equally legitimate subjective beliefs rather than objective truths; so neither may ever prevail. Having no satisfactory solution within conventional wisdom, the life-as-injury debate may be regarded as the Gordian knot of tort law. The purpose of the Article is to cut, rather than untie the knot: Allow the child to recover, without challenging or validating the deep-seated perception of life.

Part I shows that the hostility to liability in tort for wrongful life is almost a universal phenomenon, crossing lands and seas. Part II argues that this demurral is ultimately rooted in the absence of one of the central components of the cause of action. A tort action must fail because of the inability - logical and practical - to establish “harm” under the traditional definition of this term. Part III opines that since the Gordian knot of tort law cannot be untied it must be cut altogether. The traditional framework, giving rise to an insoluble problem, should be replaced with a more promising contractual framework, inspired by the celebrated case of Hawkins v. McGee. In my view, the child's action may be based on the claim that the defendant promised her parents that she would be born without a certain defect, and that the promise was not fulfilled. In formal terms, the child is an intended third-party beneficiary of the contract concluded between her parents and the consultant, in which the latter warranted that she would not be born with a particular disability. The warranty of the future child's physical integrity and health, being an integral
and inseparable part of the contract, should form the basis of her cause of action.

This is an interesting piece, though I'm not convinced it really resolves the problems many folks have with wrongful life claims. Perhaps it's typical of a tort theorist, but Perry doesn't cite much of the interesting work folks have done from an explicitly disability rights perspective on this and related issues (e.g., Adam Milani's piece, and this instant classic).