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Editor: Christopher J. Robinette
Widener Commonwealth Law School

Thursday, April 5, 2007

Wrongful Life & Contract

A new SSRN posting from Ronen Perry (University of Haifa) presents an interesting argument about wrongful birth cases.  The abstract from the article (entitled "It's a Wonderful Life"):

The title of Frank Capra's classic 1946 movie seems to encapsulate a fundamental all-American conviction. Unsurprisingly, it has been applied by several courts and jurists as the ultimate retort to one of the most intriguing questions in modern tort discourse: Is it possible to say that a severely disabled child has been harmed by the mere fact of being born? Wrongful life claimants will answer in the affirmative, whereas Capra's aphorism makes a compelling counterargument. In my opinion, the contrasting views represent equally legitimate subjective beliefs rather than objective truths; so neither may ever prevail. Having no satisfactory solution within conventional wisdom, the life-as-injury debate may be regarded as the Gordian knot of tort law. The purpose of the Article is to cut, rather than untie the knot: Allow the child to recover, without challenging or validating the deep-seated perception of life.

Part I shows that the hostility to liability in tort for wrongful life is almost a universal phenomenon, crossing lands and seas. Part II argues that this demurral is ultimately rooted in the absence of one of the central components of the cause of action. A tort action must fail because of the inability - logical and practical - to establish “harm” under the traditional definition of this term. Part III opines that since the Gordian knot of tort law cannot be untied it must be cut altogether. The traditional framework, giving rise to an insoluble problem, should be replaced with a more promising contractual framework, inspired by the celebrated case of Hawkins v. McGee. In my view, the child's action may be based on the claim that the defendant promised her parents that she would be born without a certain defect, and that the promise was not fulfilled. In formal terms, the child is an intended third-party beneficiary of the contract concluded between her parents and the consultant, in which the latter warranted that she would not be born with a particular disability. The warranty of the future child's physical integrity and health, being an integral and inseparable part of the contract, should form the basis of her cause of action.

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That slicing of the Gordian knot described in the abstract doesn't work for many "wrongful life" cases, where the claim is one of failed sterilization or abortion. Even as a contractual matter, the legal theory works only retrospectively: warranties can be waived, so the only effect of a Perry rule would be to create additional paperwork up front, leaving lawyers to sue in tort if they're to be permitted to sue at all. (There's also the question of mitigation: there's a waiting list to adopt Down syndrome babies, for example.)

The real danger is the effect on genetic counseling: if counselors can be held liable for false negatives, but not false positives, then guess which way there will be a bias.

Posted by: Ted | Apr 5, 2007 8:03:08 AM

Ted, read the paper. He discusses your two criticisms in detail.

Posted by: Mercury | Apr 8, 2007 3:23:56 AM

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