When the state forces the continuation of a pregnancy, should pregnant persons also be banned from suing the state for “wrongful birth”?
Absolutely not.
What is Wrongful Birth?
Known as “wrongful birth,” some states recognize the harm caused by medical negligence and allow for some forms of redress. Many states’ tort laws allow parents to sue if a child is born/delivered after failed sterilization or born with undiagnosed or misdiagnosed fetal anomalies. With the overturn of Roe v. Wade and the loss of a federal constitutional right to abortion, many states have enacted abortion bans or restrictions so severe that they are de facto bans. Bioethicist, attorney, and parent of a child with Trisomy 21, Mark Leach, says states that bans on abortion should also ban wrongful birth lawsuits. He argues that when you cannot legally access an abortion, you cannot be harmed by forced birth. I argue against this view.
Stolen Choices
Increasingly precise prenatal diagnosis technology results in new responsibilities and new legal liabilities for physicians, medical teams, and health facilities. The duty is to inform and offer patients medically appropriate prenatal testing and counseling. The goal is to inform parental choice. Abortion restrictions and bans mean that even if antenatal testing is performed early in pregnancy, patients who might desire termination have no choice but to continue the pregnancy. This loss of autonomy harms parents. Families are further harmed by financial and emotional burdens from the subsequent birth, medical care, and nurturing/support requirements for a child with significant and potentially fatal diagnoses.
Harms of Wrongful Birth Remain
The harm of a “wrongful birth” remains despite legislative action prohibiting abortions. This harm includes the pregnant person who might have desired an early termination but who must undergo additional gestation and childbirth. The parent is further harmed when state-imposed coerced birth leads to the forced witnessing of their child’s post-natal death or suffering. To be sure, some parents choose not to terminate such pregnancies. Disability advocates strongly oppose disability-based abortions as they argue they devalue human life and human dignity. What such advocates miss is the harm of the imposed loss of choice and credibly predictable and extended suffering and likely death of neonates post-partum.
Restricting Parental Choice
New state bans on abortion severely restrict parental choice and are opposed by the majority of Americans and by numerous medical organizations, including the American Academy of Pediatrics. Our laws and regulations should align with our ethics. While this alignment is often successful, we have numerous historical and contemporary examples where the law serves neither justice nor beneficence. For example, laws prohibiting equal treatment under the law, as challenged in the Rosa Parks (Browder v. Gayle) and Loving (Loving v. Virginia) cases, have been recognized as unjust and unconstitutional and subsequently repealed. Problematic contemporary state laws include allowance for refusal of family services (including adoption) to LGBTQ+ parents and families; these remain “on the books,” and there are myriad other examples where law and ethics are misaligned.
Abortion and Wrongful Birth Laws Collide
The Supreme Court’s determination that there is no constitutional right to abortion has led states to ban or severely restrict all abortions. Simultaneously, laws to allow wrongful birth claims to provide redress for harm caused by missed or absent medical diagnoses for fetal developmental remain in effect. Wrongful birth claims often presume that pregnant patients may have chosen abortion if they had known the correct fetal diagnosis. Without access to choose abortion in the face of severe fetal conditions, these two legal positions conflict. Consequently, some of the most severe conditions result in later pregnancy loss (miscarriage or stillbirth) or the infant’s suffering and death shortly after birth.
Additionally, it is Leach’s view that if states ban abortions, then a claim of harm from birth is never justified, as there is no state recognition of a “child-as-damage.” However, one need not view a child using this language to see the harm in neonate/child suffering, the physical risk to the pregnant patient, and the financial and emotional costs for the family. Not everyone wants an abortion, but many may still desire access to information, counseling, and preparation. Leach’s simplistic view that antenatal screening is offered merely to avoid lawsuits – rather than out of respect for the autonomy of the pregnant person and their reproductive choices – insults the agency of pregnant persons. Further, it fails to recognize the real pain in these intimate reproductive choices.
Physicians’ Moral Obligation to Share Information
Physicians have a moral and professional duty to continue to perform antenatal diagnostic testing to prepare parent(s) for subsequent care or for decisions that may permit them to seek treatment, including abortion, elsewhere across state borders. Refusing antenatal diagnostic testing because “it does not matter, you cannot get an abortion” violates basic principles of biomedical ethics, including respect for autonomy and beneficence. Leach continues to argue that local physicians should not be held liable for damages, as antenatal diagnoses have been made irrelevant for termination purposes in the state. Some states, like Arizona, already banned medical malpractice lawsuits against physicians who refuse to provide prenatal information to pregnant patients. This further protects real harm, the state, its legislators, and those negligent physicians who do not offer patients options that are clearly standard of care and good medical practice.
Leach does address the fact that abortion choice is still possible for women who travel to access services in other states. Clearly, there are justice issues as many vulnerable women do not have access to the resources necessary to travel. Additionally, failure to identify prenatal conditions risks missed access to emerging fetal and post-natal therapies for continued pregnancies. Misdiagnosis, lack of information, and absent offers to perform neonatal screening, therefore, still result in harm.
Use Wrongful Birth Laws to Overturn Abortion Bans
In abortion-restricted states, physicians who provide antenatal screening and counseling should not be held liable in wrongful birth cases. These wrongful birth cases should rest with the state and legislators who have either significantly restricted or banned abortion. I advocate retaining these laws and supporting instead lawsuits designed to overturn individual state abortion bans and restrictions. By appropriately placing blame on the state, patients can pursue justice for hardship experienced without vilifying physicians who uphold their moral obligations.
Michael J Murphy, PhD is a Distinguished Teaching Professor, Emeritus at the State University of New York Cobleskill.