The advent and increasing sophistication of medical technology, which allows the detection of birth defects in utero, has resulted in recognition of two tort claims unknown at common law: wrongful birth and wrongful life. There is an emerging trend in state legislatures and courts toward rejection of wrongful birth and wrongful life causes of action. This article provides a critical analysis of the legal, medical and ethical issues raised by wrongful birth/life causes of action. The authors utilize Hohfeldian analysis to determine the exact nature of the legal rights essential to a wrongful birth/life cause of action. The authors then turn to a utilitarian analysis to weigh the various interests involved in wrongful birth/life claims. The authors argue that a jurisprudential analysis of birth related torts demonstrates that wrongful birth and wrongful life causes of action are a radical departure from existing law, and require the recognition of new legal theories not recognized in common law or constitutional law.
James Bopp Jr., Barry A. Bostrom & Donald A. McKinney,
The "Rights" and "Wrongs" of Wrongful Birth and Wrongful Life: A Jurisprudential Analysis of Birth Related Torts,
Duq. L. Rev.
Available at: https://dsc.duq.edu/dlr/vol27/iss3/4