“Wrongful Birth” Claims and the Paradox of Parenting a Child with a Disability

October 30, 2018

“Wrongful birth” is a controversial medical malpractice claim raised by
the mother of a child born with a disability against a medical professional
whose failure to provide adequate prenatal information denied her the
chance to abort. Plaintiff-mothers are required to testify that, but for the
defendant’s negligence, they would have terminated their pregnancy.
Accordingly, alongside pro-life activists, disability rights advocates have
opposed “wrongful birth” claims for stigmatizing and discriminating against
people with disabilities by framing their very existence as a harm. Despite
plaintiff-mothers’ need for caretaking resources, scholars have
recommended solutions ranging from the wholesale elimination of the
wrongful birth claim to the curtailment of damages.

To the extent scholars and the media have acknowledged mothers in the
wrongful birth discourse at all, often it has been to blame and shame them
for allegedly rejecting their children. They have paid little attention to the
ways wrongful birth jurisprudence forces mothers to disavow their children
in court, and thereby to forfeit the “good mother” ideal, in exchange for the
possibility of securing necessary resources for their children. Commentators
who question plaintiff-mothers’ maternal devotion exacerbate the
psychological toll the law already imposes.

This Article shifts the blame from mothers to the legal system. While
wrongful birth proceedings portray mothers’ feelings about their children as
categorically negative, real life accounts and social science findings reveal
the true paradoxical experiences of all mothers, including plaintiff-mothers
raising children with disabilities. To acknowledge this complex reality and
mitigate the emotional strain of bringing a wrongful birth claim, this Article
proposes several legal reforms: (1) broadening the analysis of emotional
distress to reflect and legitimize mothers’ paradoxical feelings about their
children; (2) reframing the harm to mothers as loss of reproductive choice
rather than as the birth of a flawed child and, accordingly, expanding
available economic damages to include plaintiff-mothers’ unexpected
childcare responsibilities; and (3) educating plaintiffs’ attorneys to
empathize with the emotional aspects of mothers’ litigation experiences and
to counsel mothers accordingly. Today’s approach to “wrongful birth”
claims, which both stigmatizes disability and strains caretakers, demands
urgent reform.

November 2018

No. 2