A Senate panel voted in favor of overturning an Arizona Supreme Court ruling that set precedent almost thirty years ago in “wrongful birth” and “wrongful life” lawsuits.
Wrongful birth lawsuits typically occur when a physician fails to properly communicate the results of prenatal screenings or fetal risk factors to prospective parents and a disabled child is born. In many states across the country, such suits are now commonplace—particularly when the option to abort is still viable. “Wrongful life” suits are generally filed when an undesired pregnancy results after vasectomy or sterilization. In these cases, the current laws in Arizona allow the parents to sue for the costs of raising and caring for that child.
Precedent was set in 1983 when a low-income Tuscon couple petitioned the court for the right to sue when the wife became pregnant after her husband’s vasectomy. As a low-income family with three children, the couple deliberately took steps to thwart any additional pregnancy.
When the vasectomy failed to prevent the birth of their fourth child, a daughter, the couple won the right to sue—not just for the inadequate vasectomy—but also for the cost of raising that child. The couple argued, on religious grounds, that abortion was not an option for them. That historic court ruling holds the potential to dramatically change the face of “wrongful life” suits.
In fact, that landmark case went all the way to the state’s Supreme Court. In deliberating, the justices noted that jurors would have to offset any monetary award in “wrongful birth” cases with considerations of the value in having a relationship with a healthy child. This particular case was settled out of court, but it laid the groundwork for future “wrongful life” cases.
Proponents of this new bill say that physicians in such cases should only be held liable for medical malpractice, that is, for breaching standards of care. Clinicians should not, they argue, additionally be forced to pay the substantial cost of living expenses for a healthy or unhealthy child.
Under the bill, physicians could still be held liable for withholding prenatal information, but mere mistakes, such as failing to perform tests or detect birth defects, would not necessarily make a physician liable for the future care of that child. Proponents claim that all lives are valuable and that the bill would recognize this. Opponents of the legislation argue that the bill deprives a woman of choice, and of making critical decisions about family.
If the bill passes, Arizona would be among the nine states, at present, that ban or attempt to curtail “wrongful birth” and “wrongful life” lawsuits.