Sheth on Wrongful Birth/Wrongful Life Actions
A recent study shows that more than 80 percent of babies prenatally diagnosed with Down syndrome are aborted. In an age of increasing reliance on prenatal and genetic testing, should state tort law encourage reproductive choices that discriminate against offspring with actual or potential disabilities? Proponents of wrongful birth and wrongful life claims answer this question in the affirmative by supporting claims that allow monetary damages for the negligent deprivation of the choice to abort or not conceive a child with an actual or potential congenital disability. But the notion that one should be compensated under state tort law for the deprivation of the opportunity to prevent the birth of a child with disabilities is inherently incompatible with the ideals embodied in our nation's commitment to end discrimination against individuals with disabilities.
This Article argues that the genetic torts of wrongful birth and wrongful life violate the prohibition of discrimination against individuals with disabilities by public entities contained in Title II of the Americans with Disabilities Act. Although there has been some law review commentary on the torts of wrongful birth and wrongful life, especially in the context of federal abortion law, this Article is among the first to examine the viability of these claims under the Americans with Disabilities Act.
The title of this piece is strikingly similar to Adam Milani's piece on related issues, which everyone interested in these topics should read.