Wrongful Life / Damages
Debate Topic-Role Negative
In the most common type of wrongful life case, a doctor (or geneticist) fails to diagnose a very sever genetic problem in a fetus. In most cases, the problem is so severe that many parents say that, had they known about the problem, they would have aborted the fetus. When the parents, or the parents acting on the child’s behalf, brings a claim to court alleging that the doctor or geneticist was negligent in failing to diagnose the problem, it is called — or known as — a “wrongful life” claim.
In Tort law, damages are usually compensatory in nature — that is, they are given with the goal of returning the hurt party to the position her or she held before the injury took place. For example, in the case that someone slipped and then fell, a successful plaintiff would get damages calculated to compensate for any medical expenses and income that was lost as a result of the injury. “The basic claim is that the physician or geneticist made a mistake. Had the mistake not been made, the plaintiff asserts, his or her parents would have terminated a pregnancy” (Doerr 2009). In the context of a wrongful life claim, however, compensatory damages raise logical problem” (Doerr 2009). The basis claim is that the doctor or geneticist made a huge error. If the error had not been made, the plaintiff will, undoubtedly, argue that his or her parents would have definitely ended the pregnancy
There are two very important and distinct issues here to be recognized. First of all, if the error hadn’t happened, the plaintiff would not exist and could not bring a tort claim in court. Second of all, and maybe most worrisome of the two, the plaintiff in a wrongful life case necessarily claims that she has been injured by a parental decision not to get rid of the baby.
The notion that having a baby could be a moral crime, or that bringing an innocent life into the world could be — perhaps — wrong, may sound utterly strange at first listen. Giving birth to a new life is one of the most glorious things a human being can possibly do. The choice is usually seen as completely unproblematic from a moral (as well as social and medical) perspective. Going through with an abortion or choosing to not have children are the only options that seem to require any type of justification. The notion that having a child might actually be wrongful as opposed to right or convenient, dangerous, or embarrassing, is not something that is original. The English philosopher, John Stuart Mill, created what is quite possibly the best statement of what this wrong might be in his essay entitled On Liberty.
It is still unrecognized that to bring a child into existence without a fair prospect of being able, not only to provide food for its body but instruction for its mind, is a moral crime, both against the unfortunate offspring and against society (Mill 1929).
The crimes that Mill is alluding to are easily fixed — as Mill is aware himself. He goes on:
If the parent does not fulfill this obligation, the State ought to see that it is fulfilled, at the charge, as far as possible, of the parent (Mill 1929).
The powerful idea that was introduced by Mill includes the notion that one can hurt people simply by giving birth to them, and this may also represent a moral crime. It is these notions that are at the focus of the incredibly controversial “wrongful life” lawsuits that have recently proliferated in the United State and are also appearing in the United Kingdom (Harris 1990).
Following John Stuart Mill, one aspect of liberalism rests on the notion that laws limiting liberty may be justified only if the restricted conduct might hurt other individuals. One may make a rough distinction between the private harm principle, which is related to public institutions or the general public. The private harm principle can be stated as thus:
There is good reason for laws that protect individuals from harm by others. While other principle, such as paternalism, may be thought to justify laws limited liberty, none of them are considered herein (Bayles 1975).
In Cattanach v. Melchior, the issue decided by the High Court in was whether, if as a consequence of doctor negligence, parents become the parents of an “unintended” but healthy child, a court can, in a reward of damages, require the doctor to bear the cost of raising and maintaining that child. By a small majority (4 judges to 3), the High Court decided that the parents could recover compensation for raising and maintaining their child until the age of 18. This decision, which basically regards children as a “damage” where compensation from a doctor responsible for its existence, is simply wrong.
A similar case that raised issues closest to those created in Cattanach v. Melchior occurred in the 1995 New South Wales Court of Appeal decision in CES v. Superclinics (Australia) Pty Ltd. In this case, it was found 2-1 that damages could not be awarded for the cost of raising a child that was born as a consequence of a doctor’s negligence in that he failed to diagnose a patient’s pregnancy in enough time for her to undergo an abortion. While the woman may have not had sufficient time to undergo an abortion, the woman did have the option of putting her child up for adoption — which she did not. The defendant, therefore, was not legally responsible for the cost of raising the child that the mother made a decision to keep. For Priestley JA, the matter came down to “causation.” His Honour only allowed damages to be recovered up to the time when the mother could have put the child up for adoption.
Kirby A-CJ rejected the whole idea based on the perspective that the “sanctity of human life” prohibited the law from offering damages for economic consequences of the unwanted pregnancy that resulted from negligence and could not find a reason rooted in public policy to deny full recovery of damages claimed to compensate for the damage suffered. He saw the question more about what expense would reasonably come up in raising a child that was born as a consequence of a doctor’s negligence, from the time of birth up until adulthood; in more basic terms, allowing recovery of damages for a loss which comes directly from the negligent act. This included the expenses of raising a child up until adulthood (Sampford 2003).
Meagher JA disagreed, finding that the claim could not be established by the plaintiff and would not allow damages of any kind because the common law does not award damages where the defendant’s negligence results in the plaintiff being unable to perform an unlawful act (i.e. have an abortion). Thus no damages could be rewarded for rearing the child. To allow the recovery of damages would be offensive and would undermine the fact that the child offered happiness, for which calculation of damages would be impossible to come up with (Sampford 2003).
To offer damages to parents gives the wrong idea to society. It basically lumps all of the responsibility on doctors and this should not be the case. Individuals have got to take responsibility for their own lives and their own situations. In the case of the woman who had to give birth because it was too late to have an abortion, the question has got to raised: How did she not know she was pregnant? We expect doctors to be Gods, in a way. We expect them to locate problems immediately, know what our bodies are going through before we do; but some of this has got to be lumped on the patient as well. Doctors are not psychic and they cannot possibly know what is occurring with the fetus as every single moment of the pregnancy. While doctors can only do so much, nature can do everything.
Doctors are seeing people all day (and sometimes night perhaps) and it would be crazy to think that there are never any mishaps. To think that a doctor should have to pay for wrongful life sends a horrible message to society. It is fundamentally saying that we don’t have to have any responsibility for ourselves; if you doctors don’t do their jobs, then we can always sue.
In many cases, it would have to be considered at least that some parents would have gone through with the pregnancy had they known of the implications. Claiming wrongful life gives them the money they need to raise their child. Another example, if a child is born with birth defects, why do the doctors have to be the ones to blame. Shouldn’t people who are thinking about having children be aware of their own genetic background and their partner’s genetic background? Having the ability to tell the doctor that one is worried about certain things helps the doctor find problems that perhaps he or she would not have found before.
It must be considered, as well, that genetic testing is a somewhat newer thing and the results can be skewed; so even if a doctor did do a test and results came up negative, there is a chance something could have been positive. Is the doctor responsible for the fact that the test didn’t find any genetic problems? It would be absolutely nonsensical to think that the doctor should be punished for not detecting problems. It is also incredibly unfair.
When two people decide to have children, they are basically assuming all responsibilities and they should be aware that giving birth to a child means knowing that there are certain risks involved. There is this question to be considered: If an aborted child cannot sue for wrongful death, how can anyone sue for wrongful life?
What will happen, if we aren’t careful, is that doctors will become very wary of doing their jobs in fear of being slapped with a lawsuit. This will have a negative effect on society. We may be losing good doctors or dissuading potentially good doctors in the field of medicine because they are afraid of wrongful life lawsuits. This does not do society any great service. By making doctors afraid to do testing, give recommendations or perform other types of procedures, we would be making a health care system that is based on not being sued rather than being based on giving the best care possible to patients. Doesn’t the occasional birth of a child with birth defects or a baby that can be put up for adoption and bring joy to another family outweigh the other scary reality: a situation where doctors only do certain tests and they only follow protocol with the end result of not being sued as their motive. What then happens to bedside manner? What happens to a genuine care of patients? This is not the way that people should want health care to go. It’s scary to imagine a system where a woman has difficulty finding prenatal care. She may have to travel far and wide to find a physician who wants to see her simply because of the risk that the doctor could be sued for failing to do something or what somebody else things that they should have done.
Punishing true negligence loses its importance when people are able to sue for outcomes that are unplanned and not the fault of doctors — but of nature. All we can hope for in our health care system is that we have doctors who are making strong, well-informed decisions with the care of the mother and the unborn baby in mind. An analogy: If, for instance, a person were to get in a car crash and they rushed to the emergency room where doctors did everything in their power to save his or her life, yet when the person was recovering, he or she found out that they were now paralyzed from the waist down, should they be able to sue the doctors for saving his or her life? The patient not might like the idea of now having to live in a wheelchair and he or she may wish that the doctor had simply let them die. Should the doctors not have done everything in their power to save the person? Should they have stopped and considered that perhaps this person would rather die than not walk again? The question seems absolutely absurd. In life, there are un-perfect consequences of simply being alive and being a human being who is essentially a product of nature. Sometimes consequences are out of doctors’ hands. They cannot be expected to be some type of superhero — or, perhaps more aptly put — God.
There is no over-stressing the responsibility of the parents when it comes to making the decision to 1) either have sex (because pregnancy is a direct consequence of having sex if protection is not used and even sometimes with protection, pregnancy has got to be considered a possibility); and 2) know what is in their family background as far as genetics goes.
Many parents go into having children with the idea of having the “perfect child.” When a child is born less than perfect, parents are angry. Sure, they have the right to be disappointed, but their disappointment should not be fed and then softened by the fact that they can get some money from doctors. Many parents look at a child with “defects” as a burden. They do not want to deal with the trouble of having a child with, say, Down’s Syndrome. They imagine all of the hassle with rearing and educating. For many, it is just too much to take on. The parents may consider the child and worry for him or her, but the truth is that even children who are born with genetics issues can have a fulfilling life. Just because they are not perfect does not mean that their life is any less important than a child who is apparently perfect. This again sends an awful message to society; it seems to imply that only people who are free from any kind of defects are the kind of people who should be living on this planet. This brings us to the topic of eugenics.
Eugenics is the belief that we can improve the qualities of the human species by discouraging reproduction by people who have genetics defects or other undesirable traits. Eugenics is an evil way of thinking and it conjures up certain ideas that are associated with Nazi Germany. Eugenics makes us think of Hitler and his enforced racial hygiene, human experimentation and extermination. While wrongful life suits don’t make parents into Hitlers, there is the same kernel of thought — and that is that anything less than what our society says is acceptable in a human being is not good enough and thus must be either slashed out of the human race or must be used as a means to get compensation. We must have children who are clean and who can make us proud. How could a parent ever be proud of a child with a genetic problem? While this may not be the most vital question at hand, the questions associated with wrongful life bring up many of the same moral questions as those related to ethnic cleansing and extermination.
The idea that a parent can go into a courtroom and argue about the fact that they were not given the right or the chance to kill their child and then want money on top of it is horrendous. This idea reflects the deterioration of our society as a whole. In what other times would it have been possible — and okay — to do this? In a way, it is nonsensical to talk about the notion that children with disabilities are special people because we should be coming from the perspective that all children are special. The human life is special — without or with disabilities. How can we possibly ask the court to put a price or a certain amount of worth on a child? When parents get to sue for the life of their child and then keep the money that has been recovered because of that child’s life does not make any sense. Any person who does this should not be allowed to have the child. If the child is so much of a burden or an embarrassment, then why not just put the child up for adoption? The amount of emotional scarring this could do to a child is huge. Any person who would do this does not deserve to be a parent.
Simply because we now have genetic testing, this does not make it okay to start suing doctors for the babies that we end up with. Could this have happened one hundred and fifty years ago? How about fifty years ago? The answer is no because those kinds of tests didn’t exist. As mentioned, they are still not 100% reliable. Doctors were never held 100% responsible for the “kind” of child that parents had. Doctors are a luxury these days in that they can help the mother along the way. They can track the growth of the fetus, they can tell the sex of the child, they can give drugs during the birthing process. They can do many things that make the childbirth process easier for the mother. What they cannot do is be some sort of God who can make sure that parents have a completely perfect child. This is up to nature — and God, if you want to believe in that.
Giving parents the legal right to sue doctors for their imperfect child is simply ridiculous. Imperfections can be viewed as many. Imperfections can be Down’s Syndrome or cerebral palsy, or they can be ADD or asthma. Where do we draw the line? Where do we say, “Okay, this child is worth this amount of money to be paid because they have this.” This is another issue in the wrongful life debate. How are we to put a number on a child’s problems? How much is enough recompense for parents to feel satisfied and no longer feel resentment toward the doctor(s)? How can they put a price tag their burden and their child’s life? These are all questions that cannot be answered in a positive manner and thus they are questions that lack moral values. When did it become okay to put a value on human life?
The bottom line is that everybody has a right to life and it is only in denying that fact that we can possibly award damages to parents for wrongful life. This is not negating the fact the parents with children with severe disabilities or deformities do suffer because of these problems. It is one thing to have sympathy and also admiration for people who are able to raise children with problems, it is another to look at them as burdened individuals who deserve money for their time and efforts.
Adoption is always an option for everyone. To sue for wrongful life is stating that you don’t want the child, so just give the child up for adoption. It is that easy. Suing a doctor because he or she wasn’t able to detect every last genetic issue during a pregnancy is so skewed in its rationale and so dangerous to our society as a whole.
References:
Bayles, Michael D. (1975). Harm to the unconceived. Kalamazoo College — Western
Michigan University Conference in Philosophy of Law.
Doerr, Adam. (2009). The ‘wrongful life’ debate. Genonomics Law Report. Retrieved on September 1, 2010, from the Website:
http://www.genomicslawreport.com/index.php/2009/09/22/the-wrongful-life-debate/
Harris, John. (1990). The wrong of wrongful life. Journal of law and society,17(1), 0263-
323x.
Mill, John Stuart. (1929). On liberty. Forgotten Books.
Sampford, Mary. (2003). The cost of raising a child: Cattanach v. Melchior and the justice and other legislation amendment bill 2003 (Qld). Queensland
Parliamentary Library.
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