Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Monday, March 13, 2006

Wrongful Birth

"Like most American women who give birth to a severely handicapped child, Donna Branca became pregnant with A.J. well before the age of 35. Had she been older, her doctors would almost certainly have recommended amniocentesis to screen for genetic disorders. But she was 31, so they did not, despite the fact that she had an unusual pregnancy. Branca bled during her first trimester, a possible indication of birth defects, and at her midterm sonogram, when she was 20 weeks pregnant, her fetus looked smaller than it should have based on when her doctors originally presumed she conceived. Branca had not gained much weight, either, but her doctors — whom she is barred from identifying, by a legal settlement — saw no cause for alarm. . . . At present, courts in about half the states recognize wrongful birth as a subset of medical negligence or allow lawsuits under the more general malpractice umbrella if a doctor's poor care leads to the delivery of a child the parents claim they would have chosen to terminate in utero had they known in time of its impaired health. In some of these states, like New York, where the Brancas' case was tried, emotional damages — compensation for the distress incurred by having an impaired child — cannot be recovered." By Elizabeth Weil, New York Times Magazine  Link to Article (last visited 3-12-06 NVS)

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