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Should “Wrongful Birth” or “Wrongful Life” Lawsuits Be Allowed?

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Should “Wrongful Birth” or “Wrongful Life” Lawsuits be Allowed?

Introduction

The field of biomedical science has technologically improved to make it possible for medics and the parents of the unborn child to know whether a child will be born with defects or having acquired diseases that are hereditary in nature. Through advancement of technology in the medical field and the legality associated with the practice of abortion, a new class of tort developed in the 1970s. This tort was named as the wrongful birth and wrongful life. As at now, various prenatal tests such as ultra sound and Down syndrome enable early detection of congenital ailments and disorders. This development therefore enables parents to undergo tests that determine if they are carriers of hereditary diseases that may affect the developments of their infants. For example, since the development of medical technology, women who suffered from German measles in their first twenty-eight weeks of their pregnancy were known to bear children with defects. Developments of these medical techniques deduce the likelihood of wrong and incompetent application. For example, if German measles is misdiagnosed and such testing yield false results, prospective parents who are in such a risky situation may not be warned. As such, they might not receive the warranted counseling to undergo such tests. While such negligence occurs, the possibility of giving birth to a defective child is very high. This case can be avoided if the knowledge of its occurrence were made available at an early stage. Avoidance of such situation is through abortion. Negligence of this kind may lead to lawsuits against medical personnel who failed to exercise the expected due care. In this scenario, two types of suits may be instituted. The distinction of the lawsuits depends on the identity of the plaintiff. In suits involving wrongful births, the plaintiffs are usually the parents. Their claim is based on action of negligence on the part of medical personnel whose actions lead to financial and nonfinancial suffering on the parents deformed child. The justification behind this argument is that such a case could have been avoided if the birth of the defective child was prevented. Parents suing for negligence of the medical practitioners argue that if they would have been advised to take abortion, then they would not have been harmed by giving birth to a defective child. Financial expenses claimable under this situation are costs that such parents may incur in raising a defective child, while nonfinancial; expenses refers to mental and psychological strain suffered by such parents. The aim of this article is to take a position and rebut whether wrongful births or wrongful life lawsuits should be allowed.

In wrongful life lawsuit, the plaintiff is usually the child while the defendant is party considered to have conducted wrongfully. This could be either the child’s parent or the medical personnel who influenced the child’s parent decision not to terminate the pregnancy. In his claim, the child argues that the parent had the obligation to prevent his defective nature. The existence of the two lawsuits assumes two realities. One is medial in nature while the other one is legal. The medical one assumes the existence of improved technology that allows early detection of a child with deformities before their birth. The legal reality assumes that the medical claim would not make any sense without the existence of legal access to termination of pregnancy, which is the only way that a wrongful birth can be prevented (Strauss 161-173).

Both wrongful life and wrongful birth lawsuits pose morality and legality problems. Wrongful birth lawsuits are not conceptually difficult. Lawsuits of wrongful life that argue it could have been better for abortion, raises logical and existence questions. Some of the controversies behind this lawsuit are the right for people to be born with defects, the preference to non-existence rather than to born with defaults and how estimation of damages in rewarding compensation is done. This debatable issue on wrongful life lawsuits makes this case philosophically, scientifically and legally interesting. Apparently, a paradox is exhibited in this kind of lawsuit. For the plaintiffs claim that it is better if he could not have been born means that he is the impaired party. If the preferred alternative is looked at, the plaintiff in such a case would not have been conceived leave alone being born. This argument raises concern about the rights and status inherent to a non-existing being (Tomlinson 1-19).

Wrongful birth and wrongful life lawsuits should not be allowed. The irony of the nonexistence claim in wrongful lawsuits is avoidable if such a case is looked from the perspective of actual injuries suffered by the plaintiff through the negligence of defendants than it is looked from the perspective of imagination of the condition that the plaintiff would have found himself into if the negligence had not occurred (Seymour 26-36). To establish this opinion, I will review some of the cases that have been presented in the courts of law by criticizing and analyzing the nature of actions taken in case of personal injury.

Wrongful life lawsuits

According to a legal suit between Procanik v. Cillo in 1984, Rosemary Procanik informed her medical personnel who was an obstetrician that she had been diagnosed with measles. The obstetrician ordered tests to be carried on the client, which he misinterpreted and confirmed to her that there was no cause for alarm. This reassurance gave Rosemary Procanic the confidence to continue carrying the pregnancy. After delivery, the plaintiff’s child by the name Peter suffered multiple birth defects associated with complications of congenital rubella syndrome. Peter Procanik afterwards sued for wrongful life. According to this legal suit, the obstetrician misinterpretation of results led to a tragedy. Were it not for the obstetrician error, Peter Procanik would not have been living with multiple birth defects. Although this situation was unambiguous, there was difficulty in establishing a cause for action by claiming a tort of wrongful life. According to the law of torts, compensation is awarded for the sole purpose of restoring the injured party to the position he would have been had were it not for the occurrence of the injury. In such a scenario, before a reward is awarded, a comparison is made between the present state of the plaintiff and the situation it would have been if there had been no injury (Pelias 71-80).

This comparison helps to assess the nature and extent of the injury and therefore aid in determining the award to such injuries. In a wrongful life lawsuit, lack of injury definitely means that the plaintiff was not born. In this case, therefore, a comparison is carried between the plaintiff’s present defective state and his nonexistence. Here, rationality goes beyond its applicability in establishing the injury suffered by the plaintiff leave alone determining the right compensation in the circumstance. This lawsuit is difficult to determine because one, were it not for the negligence of medical personnel, Peter Procanik would not have been born. Secondly, it is complicated to assess the amount of compensation fit for the plaintiff to bridge the difference of his existence with defects and his non existence.

Wrongful life lawsuit is paradoxes because of consideration are issues of logic and fairness on one hand due to negligence of the medical personnel. To exercise fairness and to fix the irresponsibility of negligence it would only be fair to offer compensation for the distress suffered by the plaintiff. On the other hand, it is unfair to conclude that the defendant should compensate the plaintiff, knowing very well that the plaintiff would not be a living thing were it not for the actions of the defendant.

Some of the experts in this legal issue hold that wrongful life suits should be actionable due to the non-existence paradox. According to their arguments, writer’s who take this position argue that the nonexistence problem can only be solved by accepting that for certain plaintiffs cases, living is more debilitating than never having been brought to this world. Those who hold this opinion base their argument on the severity of impairments that would lead the plaintiff to prefer death as a relief. To support this opinion, they argue that wrongful life is a result of negligence that inflicts financial and non-financial distress as well as conferring life on the plaintiff. The defendants conduct on aggregate cause harm to the plaintiff thus ruling in favor of the plaintiff is the right thing. Those who argue in favor of legal actions on this issue opine that rewarding of compensation to the plaintiff ensures his lifetime expenses are sought.

The shortcoming behind this argument is its comparison of impaired living with being dead whereas the comparison should be between impaired living and never having been born. The proposition of allowing wrongful life lawsuits is also disputable because no matter how painful a plaintiff’s life is, it cannot be compared with not living. Again, instituting legal suits on the part of those ling with deformities is not the remedy. The best possible remedy to them is undergoing voluntary euthanasia. Finally, if a person born with deformities were completely incapacitated, any compensation awarded to him would not be beneficial since he would not be in a position to enjoy.

Wrongful birth lawsuits

Wrongful birth lawsuits should not be allowed. To start with, allowing legal actions against wrongful births makes medical professionals to treat their patients with fear of legal sanctions. Prohibition of these lawsuits significantly reduces medical liability claims. It was noted that obstetricians were among the top paying professionals of such penalties. This threatened their careers. Besides, increase in wrongful birth lawsuits means increased health costs as a result of increased premiums. Restriction for such lawsuits can therefore help reduce such expenditure.

Prohibition of wrongful birth cases would reduce cases of abortion. This has the effect of offering protection to fetal life and therefore promotes legislative policy of favoring childbirth. This has been implemented in some states such as Pennsylvania. The state of Utah also outlawed wrongful birth claims especially where the reliance was on the grounds of negligence and termination of a pregnancy would be considered the best option. Such claims are also inimical for those who believe that only God has the right to take away life and that abortion is a crime. The law in this case promotes the legislative policy of promoting childbirth over abortion. However, the are those who criticize this view on the grounds that prohibition of wrongful birth actions puts a burden on the right to abortion. Specifically, this issue has been considered invalid by courts that are of the view that the absence of a legal action does not in any way hinder abortion. Looking this issue on another perspective, you find that the public policy behind these laws is the deterrence of abortion and not their prohibition. Laws passed on the deterrence of abortion discourage the endorsement of the view that the absence of abortion is a wrong that can only be addressed through a tort action. A pro-abortion line that argues that abortion should be safe and rare and at the same time carried within the doctrines of law shows that there is the encouragement of abortion and its rarefy cannot be objected to. In a different view, an argument that contends that abortion is a constitutional deprivation sounds more like an establishment of a right to a dead infant (Botkin 1541-1545).

Another argument concerns the hindrance to eugenic campaigns. Eugenic argument recognizing wrongful birth lawsuits was because of support by the societal interests to reduce cases of genetically defects. This view was invoked by the state of Idaho through the recognition of wrongful birth legal actions. Contrary to this, New Jersey failed to recognize the wrongful life claim on the basis that eugenic considerations do not control legal actions on wrongful births. As noted by one judge in Pennsylvania, recognition of wrongful birth lawsuits leads to coercion of medical professionals to accept abortion on the grounds of eugenic considerations to avoid lawsuits that can be pursued against them. Another court in Pennsylvania appealed to the state on its actions of preventing eugenic abortions in support of its claim that such prohibition was unconstitutional. The argument of eugenic nature imagines a scenario where the parties of the lawsuit being the parent and the impaired child were the state. If they were the state, instituting an abortion would amount to harming the society. Eugenics is the process of improving and perfecting human beings’ through technologically motivated means. The view of this notion faced criticism in the mid of 20th century but it has received acceptance nowadays. This practice is gaining popularity in the United States. Outlawing wrongful births does not prevent the practice of Eugenia but it blocks states from endorsing such practice and safeguards medical professionals from liability when they fail to participate in it (Evgenia 97-118).

Mostly, the appeal by the public policy supporting the recognition of wrongful births indicates the intrinsic value of human life. According to an Idaho court, the injury of in a wrongful birth case is the birth of the child. Contrary to this view, a Michigan court of appeal argued that wrongful birth legal actions imply that the life of an impaired child is worth less than the life of healthy infant. This court argued that if all lives were valuable, there is no way the life of an impaired child would be considered less valuable (Dimopoulos, Penny&Bagaric 230-238). Pennsylvanian court concurred with this opinion that wrongful births endorsed the opinion that the life of an impaired child was less valued than that of healthy child.

Conclusion

A number of states prohibit the recognition of wrongful birth and wrongful life lawsuits although some have undergone through constitutional challenges. The concept of wrongful birth of wrongful life is an apprehension, viewing it from the perspective of labeling life as unworthy. Prohibiting such lawsuits is therefore the only valid way to compel public policies against the growing view of a culture of death.

Work Cited

Botkin, J R. “The legal concept of wrongful life.” JAMA : the journal of the American Medical Association 259.10 (1988) : 1541-1545. Print.

Dimopoulos, Penny, and Mirko Bagaric. “Why wrongful birth actions are right.”Journal of law and medicine 11.2 (2003) : 230-238. Print.

Evgenia, Smyrnaki. “Wrongful life and birth.” Medicine and law 31.1 (2012) : 97-118.

Pelias, M Z. “Torts of wrongful birth and wrongful life: a review.” American journal of medical genetics 25.1 (1986) : 71-80. Print.

Seymour, J. “Actions for wrongful birth and wrongful life.” New Zealand bioethics journal 2.1 (2001) : 26-36. Print.

Strauss, S A. “‘Wrongful conception’, ‘wrongful birth’ and ‘wrongful life’: the first South African cases.” Medicine and law 15.1 (1996) : 161-173. Print.

Tomlinson, W.L. “T orts--W rongf ul Birth and W rongf ul Life.” Missouri Law Review 44.1 (1979): 1-19. Accessed from http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=2484&context=mlr on 8/4/2014.…...

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Wrongful Convictions

...Wrongful convictions happen every day within our justice system, according to the , Bureau of Justice Statistics, admits that statistically 8% to 12% of all state prisoners are either actually or factually innocent. One out of every 100 adults in the United States is behind bars. If we take those on parole or probation into account, that ratio jumps to 1 out of 31 adults. America, the Land of the Free, imprisons five times more people than Great Britain, nine times more people in Germany, and 12 times more people than Japan. Only about 8 percent of sentenced prisoners in federal prison were incarcerated for violent crimes, and about 52 percent of sentenced prisoners for state prisons. Within three years of their release, roughly two-thirds of former prisoners are re-arrested, while 52 percent are re-incarcerated. Those statistics only show a small part of the lingering problems with our criminal justice system. What about the reported 1-2 percent of our prison population that shouldn’t be there in the first place? Radley Balko, senior writer for Huffington Post and contributing editor at Reason, says since 1989, “DNA testing has freed 268 people who were convicted of crimes they did not commit.” (HVnews, 2011) We are paying taxes to not only take care of the convicted but also the innocent. With everyone wanting fast justice, many people in power like police, judges and lawyers tend to rush through a case if they feel they are able to get something stick without......

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