Week 3 Post 1-Wrongful Birth and Wrongful Life

     Introductions to Legal Concepts

-Tort law, is the type of law the governs private wrongs, it is civil law as opposed to criminal law, and is typically brought by one party, the plaintiff against another, the defendant, claiming a legally protected right has been infringed

-The most common use of tort law is negligence, in which the plaintiff must prove the defendant owed a duty to the plaintiff, the defendant breached that duty, which causes injuries to the plaintiff, which resulted in damages to the plaintiff

-The most common types of negligence suits in relation to acts that have consequences on how people reproduce are: wrongful conception (pregnancy), wrongful birth, and wrongful life

     -In wrongful conception the plaintiff is someone who had a healthy child, but it was one they wanted to avoid having, and is most often used during birth control malfunctions and mispreformed tube litigation

     -In wrongful birth the claim made is that a child is born with a disability or defect, and the parents bring the lawsuit on their own behalf, seeking damages associated with raising the child 

     -In wrongful life the claim is made that a child is born with a disability, but it is brought forth from the child, or someone acting on the child's behalf, and that the child was injured by the pregnancy that resulted in them having poor medical health 

-Most states allow wrongful pregnancy claims, and some allow wrongful birth but most are very hostile to wrongful life claims 

-Liability is a successful claim against the defendant, and remedy is the compensation, and courts struggle between if their is liability and if the defendant should have to pay damages

Siemieniec v. Lutheran General Hospital 

-In this case, Mrs. Siemieniec, who had two cousins who had died from hemophilia, went to Lutheran General Hospital for a risk analysis and specifically told them that if the fetus had a risk of hemophilia she would abort it, and the referred doctor from the hospital says the risk would be very low, and they carry the child to term

    -Shortly after the baby, Adam, is born they have a bleeding episode caused by hemophilia of type B, and so the Siemieniecs bring a negligence lawsuit against the hospital and physicians, and requests for for damages, not remedy, for the costs to treat the disease, and for alleged emotional distress

-The broader implications is if Illinois should recognize wrongful life and wrongful birth in cases, especially due to genetic diagnoses negligence, and the parents claim they were prevented from having an informed decision about whether to remain pregnant because of this negligence

-The defendants raise the objection against the wrongful birth claim that injury being raised is life itself, which would mean in turn conclude that being alive in inherently an injury

    -This claim goes against standard tort law, and would create a new jurisdiction that previous courts had not wanted to make

    -There is some problems with using this claim in the wrongful birth case, because another person can cause injury to someone else because of their life

-Another objection against the wrongful birth claim the defendants made is that the remedy, if everything had gone correctly the couple would have had an abortion, and while abortion is legally protected, they claim it goes against public policy and would be the court telling everyone to get abortions 

     -The problem with this claim is that all the defendants are saying is that they should have had an option, based on correct information, and it actually fails to incentivize people to get abortions if they can get damages by carrying the pregnancy to term 

-The last objection given was bringing up a pervious case which had ruled damages could not be sought for a wrongful pregnancy case, because the cost of raising a child was not greater than the benefit of life, citing that this was public policy

    -The problem with this argument is that it is a false comparison because in wrongful pregnancy cases there are no extra costs than that associated with any type of unwanted pregnancy, unlike this case

-The court however gave no  response to the objections, they just list them saying they are important but not compelling enough, and cite many court cases that have recognized wrongful birth, because they want to deter these diagnostic errors 

-The tort claim of liability is allowed, and the court allows damages to be paid for the cost of childcare up till the child is an adult, and costs associated with the illness after the child reaches that age

    -The court does not allow, however, payment to be made to the parents for emotional distress because they were not in "the zone of danger", did not suffer any physical injury or illness from the negligence

    -One judge dissents on this case, saying the reason the zone of danger is applied is not applicable in this case, and there should be emotional damages paid

Turpin v. Sortini 

-The Turpins took their daughter to Sortini, a licensed hearing specialist, who concluded she had fine hearing, and later thee Turpins sued him, stating that this was a negligent diagnosis and the daughter was deaf, due to a hereditary condition

-Before they knew about their daughter's hearing condition they had another child, who was also born with this condition, and they claimed they would not have had this child if they had know of the genetic disorder

-They made a wrongful life claim, on behalf of the second daughter, claiming damages for the right of a child to be born a functional whole human being, and special damages for the expense of specialized teaching for the child 

-The court characterized the tort lawsuit as being like a typical malpractice case, and so they applied typical tort law, and the court says that the plaintiff can prove a duty, a breach, a proximate cause, and the problem arises with the injuries claim 

    -The court references a pervious case in the state where a coupled sued a lab for being negligent about blood-testing for future children's diseases, where damages where accepted, because but for the negligence of the doctor the child would not have been born at all

       -The court in that case says that it is not important to debate if the plaintiff would have been born had the genetic problem been known because the plaintiff is alive and suffering at the hands of someone else, and because they are alive they have certain rights

       -The court in the Turpin case says that court was wrong with how it was speaking about wrongful life cases, because it says but for the negligence the child would not have been brought into being at all, and that is an important point

-The court says that the point of tort recovery is to make the victim as well off as they would have been if the negligence had never happened, but in the Turpin case the defendant would not have been better off if the negligence had not happened because she would not have been born 

    -The court cannot give the child an unimpaired life, and the choice was between an impaired life and no life at all, and the court says that life is preferable to no life 

-One objection was that reasonable cognitive injury cannot occur because public policy dictates that life is always preferable to non-life, and the court says that it is not clear how the damages of a disabled child would effect the value of life, and that law does not always favor life over non-life, citing people's right to refuse life-sustaining care 

    -The court considered an additional objection that the child herself is not making an objection to being born, and the court responds saying that parents are making decisions based on the best interest of the child, and without knowing all the genetic risks they cannot make an informed decision

-The court recognizes that while in this case the child still has a life worth living, that is not always the case 

-The court says the liability has been proven but there can be no general damages paid because it cannot be said certainly that there has been an injury 

     -The court says however there can be special damages paid for the costs of raising the child

-This court goes against most courts in wrongful life suits, saying there is liability, but that the damages are limited to special damages, but one justice dissented saying it makes no sense that there should be special damages but not general, because the different between the two is insignificant

General Wrongful Birth and Life Cases in the US

-Currently almost all states prohibit wrongful life liability, but most permit wrongful birth 

-The common understanding is that trot law has two functions, deterrence against careless action, and compensation, so those harmed are paid by the wrong doer

     -The theory of deterrence is that the threat of tort liability presses people to adopt more careful innovations, that may be somewhat costly to them 

-There is often a divergence from these two concepts when looking at wrongful birth cases because in many cases the courts find that life is better than non-life and no injury has incurred, but they still want to deter errors in genetic prediction 

-Some argue that children with disabilities will be born regardless of doctor negligence so resources should instead be put into collectively helping all those people, and redistributing funds, which would be more like worker's compensation

-There is also the argument that if wrongful birth suits should have damages should the damages be paid with the entire cost of raising that child, or just the extraneous costs related to the disability

    -Some say that because the child would not have been born if not for the negligence and so the whole cost falls of the defendant, but some say that if there is an intent to have a child, only the extra costs of that child's care should be paid for 

Regulating Reproduction

-One way that reproduction is regulated is through private methods, where a person can get a genetic test and determine if they want children based on the results 

-The process of running genetic tests, specifically on embryos used for IVF, is usually for negative selection, where the test is looking to filter out "negative" traits, but can also be used for positive selection which is looking for "positive" traits to chose from

    -Couples will look for sperm donors with traits they find desirable

-In rare cases parents will try to select negative traits for their child, like an example where a deaf couple wanted to have a deaf child, because they saw their culture of deafness as great and wanted to share that with their child, and these instances are criticized, but are not fundamentally different that people selecting positive traits 

-Many people also want to choose the sex of the children, and their are many ways to go about it, including selective abortions, and running genetic tests on embryos in IVF 

    -Another, more controversial way is sperm sorting, where male and female sperm are sorted using flow cytometry, which colors the DNA of the sperm to determine the sex, and injecting sperm of the desired sex through intra-cytoplasmic sperm injection, however this technology is not available in the US

-All these methods are called private eugenics, which are choices by individuals relating to their reproduction not directly governed by the state

    -The state is always in the background  though, with regulations relating to children, that can shift people's decisions

-Private eugenics is contrasted with attempts by the state to regulate reproductive choices 

-The state tries to regulate these choices in 4 dimensions: target, justification, means, and method

    -The target is the reproductive decision the state seeks to influence, and it is often regulating, whether, when, or with whom individuals reproduce

        -Ex: Sterilization programs of the mentally ill is determining whether someone reproduces, abstinence education is trying to determine when people reproduce, and statutes barring the buying of eggs determine with who individuals reproduce 

    -The means is how the state seeks to influence the target decisions, and there is a range from least intrusive to most intrusive, with physical alteration being the most invasive, and information funding being least intrusive 

    -The justification is arguments offered in favor of  the interventions, and there are four types: The Harm Principle, which says that preventing harm to others is a justification for state intervention, Paternalism, which is justifying stopping harm of a person to themselves, usually by saying there is some kind of false consciousness, Wronging without Harming, which says that a person's rights can be infringed, even if they do not have harm befall them, and finally Moralism and Virtue, which argues that even if there is no harm to anyone, the action might have negative effects on public morality generally, justifying state action

     -The method is the specifics of the measures put in place by the state, like banning IIVF but not sperm donation

-Historically disabilities were viewed as a defect, and something that had to be fixed usually medically, which created the sociological idea that disabilities were negative 

     -The social model of disability says that the problem is not with the impairment or the person itself, but how we structure the environment

-Currently the there is some trepidation in the disability community about these new assistive technologies because there are concerns that they are not made with people with disabilities in mind 

-Historically in regards to genetics there has been a bad relationship with people with disabilities, because these traits were seen inherently as bad, and genetic, and there were many forced sterilizations of disabled people, primarily people with intellectual disabilities, which continued into the 80s 

-When people with disabilities expressed excitement about the potential benefits of reproductive technologies there were meet with social pushback, and physical pushback as the technologies were mostly inaccessible to them, as well as economic pushback, as people with disabilities do not always have the same access to health care

-The irony is that new reproductive technologies have given many disabled people new hopes in having children, but is also used to screen out potential disabilities in children

-Some groups of people with disabilities particularly the Deaf community, which views itself as a culture, worries that genetic screening could eliminate the culture's population, mostly with loss of their language 

-Another group that has some problems with this genetic screen is people with Down syndrome, who say the problem is not just with the technologies but with the actions and ideas that follow up the use of them

     -They say that people cannot make an informed decision about having a child with Down Syndrome without knowing a person who has the disability, and without this they will continue to decrease in numbers and cease to exist 

      -Societies willingness to help people with a certain disability is also somewhat dependent on its lobbying force, which becomes limited with the advent of these technologies

     -They also relate the issue of viewing having Downs as a disadvantage, to viewing any other group as being disadvantageous and seeking to not have children in that group, like women, or people born in poverty 

     -If the reasoning for screening out children with a disability is because it is viewed that they will have a disadvantage, how is that different than a child that has an of the inequities in the world 

-With the case of the two deaf people who got a deaf sperm donor to try to have a deaf child, there were some people saying that this use of reproductive technology is wrong, while others said this is fine and its is parents wanting their child to be apart of their culture, as many parents want

-Historically, generally, people with intellectual disabilities have been less spoken about than people with physical disabilities, because they are often "invisible", and are less easy to empathize with, and this issue of loop-sidedness has persisted into support for the use of reproductive technologies 

    -There are also different social and religious beliefs around people with intellectual disabilities that perpetuates this stigma 

-The U.S. is technically ahead of the curve when it comes to disability law on an international scale, but all countries are still developing 

-Finland, who supports reproductive technologies, for a long time did not want to provide it to people with disabilities, but the law has changed 

-In places where there is already a concern over population growth, like China or India, there is a question on how this will affect the disabled community, and how both access and social stigma could limit use 

-A lot of times these issues effect women with disabilities most and also look at the person's "best interest" without asking for their consideration

The Non-Identity Problem

-The most commonly used justification from states on regulating reproduction is that the court is preventing harm or providing benefit to a child that would result from an act of reproduction, also called Best Interest of the Resulting Child (BIRC)

-The Italian government created a law prohibiting same-sex, single or older women from using reproductive technologies citing, that it is in the best interest of the child to be brought up in a family that follows the "socially acceptable" model of parenting

-In the U.S. there is a policy statement that postmenopausal pregnancy should be discouraged, and the treats to the woman and the potential child's health should be seriously considered, citing specifically  that since children are emotionally and physically exhausting, and older  couples might be unable to meet the needs of a growing child 

    -They also say that children could resent mothers old enough to be grandmothers and could adversely effected socially and psychologically

-There is a difference between the best interest of the resulting child, and best interest of an existing child, and best interest arguments that arise from cases in which the proposed intervention would determine if a particular child came into existence is deeply problematic 

-The Non-Identity problem basically says that a child cannot be harmed by being brought into existence, as long as they are given a life worth living, i.e. a life where an individual has so much pain they would have preferred not to be born

-The problem also shows a flaw in some logic of prohibiting reproductive technologies by states to certain people using BIRC arguments, because as long as the resulting child has a "life worth living" the child is not harmed  by just virtue of existing 

-The non-identity problem does not express the view that people are harmed if they are not created, because there is no one to be harmed if they are not created, all it means is that no one is harmed by being created, if the live a life worth living 

-Narrative identity is an idea that people's narrative lives are often, but not always effected by their genes, which is used in the non-identity problem to say that the welfare of a certain person would not be benefitted if a different sperm or egg where used at a different time period (who and when) 

    -It is wrong to compare a child's life to the life of a different embryo conceived at a different time or with a different person, because it would not be comparably better for that child, because that specific person would have not existed at all

-According to the non-identity problem regulation does not impact children born, but it does impact which children are born

-The non-identity problem only refers to regulation on how people conceive and not other forms of reproduction selection 

-One argument is that BIRC is justified when the resulting child would have a life not worth living, because it can be argued that an individual is harmed by being born, and that normally requires very extreme cases