Duquesne Law Review


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.

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