Wrongful Life — Its Problems are Not Just Semantic: A Reply to Furrow

Furrow B. , Diminished Lives and Malpractice: Courts Stalled in Transition , Law, Medicine & Health Care 10(3): 100 (June 1982) [hereinafter referred to as Diminished Lives].

Comment, A Preference for Nonexistence: Wrongful Life and a Proposed Tort of Genetic Malpractice , Southern California Law Review 55(2): 477 (1982) [hereinafter referred to as A Preference for Nonexistence]; Capron A.M. , The Continuing Wrong of “Wrongful Life,” in Genetics and The Law II ( Milunsky A. Annas G.J. , eds.) (Plenum Press, New York) (1979) at 81; Comment, On Determining Liability for “Wrongful Life”: Curlender v. Bio-Science Laboratories—A Step in the Right Direction? New England Law Review 17(1): 213 (1981) [hereinafter referred to as On Determining Liability for “Wrongful Life”]; Capron A.M. , Tort Liability in Genetic Counseling , Columbia Law Review 79 (4): 618, 634 n.2 (1979) [hereinafter referred to as Tort Liability].

Diminished Lives, supra note 1, at 100.

See Prosser W.L. , Law of Torts (West Publishing Co., St. Paul, Minn.) (4th ed. 1971) at §30.

Annas G.J. , Righting the Wrong of “Wrongful Life,” Hastings Center Report 11 (1): 8, 9 (February 1981) [hereinafter referred to as Righting the Wrong].

Reilly P.R. Milunsky A. , Medicolegal Aspects of Prenatal Diagnosis , in Genetic Disorders of the Fetus ( Milunsky A. , ed.) (Plenum Press, New York) (1979) at 603, 616.

Speck v. Finegold, 439 A.2d 110, 115 (Pa. 1981) ( Flaherty J. ).

Ratner G.A. , The Coming of the Second Genetic Code: Eugenic Abortion in the United Kingdom , in Medico-Social Management of Inherited Metabolic Disease ( Raine D.N. , ed.) (M.T.P. Press, Lancaster, England) (1977).

See Sarno G.G. , Annotation: Tort Liability for Wrongfully Causing One to he Born, 83 A.L-R.3rd 15 [hereinafter referred to as Wrongfully Causing One to be Born].

Id. §16.

Id. §15.

Id. §§19, 20.

Id. §§14, 19, 20.

Id. §20.

Id. §§13, 17.

Id. §20; Turpin v. Sortini, 182 Cal. Rptr. 337 (Cal. 1982).

Wrongfully Causing One to be Born, supra note 9; Trotzig M.A. , The Defective Child and the Actions for Wrongful Life and Wrongful Birth , Family Law Quarterly 14 (1): 15 (1980) [hereinafter referred to as The Defective Child]; Brown G.A. , Wrongful Life: A Misconceived Tort—An Introduction. University of California at Davis Law Review 15(2): 445 (1981) [hereinafter referred to as A Misconceived Tort]; Comment, Wrongful Life and Wrongful Birth Causes of Action—Suggestions for a Consistent Analysis, Marquette Law Review 63(4): 611 (1980); Waters J. , Wrongful Life: The Implications of Suits in Wrongful Life Brought by Children Against Their Parents , Drake Law Review 31(2): 411 (1981/1982).

“Wrongful life suits involve a claim by the child, his parents, or both, that the child should never have been born.” Furrow B. , The Causes of Wrongful Life Suits: Ruminations on the Diffusion of Medical Technologies , Law, Medicine & Health Care 10(1): 11 (February 1982).

Diminished Lives, supra note 1, at 104.

Id.

Turpin v. Sortini, supra note 16, at 340 (listing of recent wrongful birth court decisions allowing parents to recover).

Diminished Lives, supra note 1, at 106.

White v. United States, 510 F. Supp. 146 (D. Kan. 1981); Cox v. Stretton, 352 N.Y.S.2d 834 (1974); Aronoff v. Snider, 292 So.2d 418 (Fla. App. 1974).

Tort Liability, supra note 2, at 645, 652.

Turpin v. Sortini, supra note 16, at 345.

Kerenyi T.D. Chttkara U. , Letter to the Editor, New England Journal of Medicine 305(20): 1219 (November 12, 1981).

Down's Syndrome and Sibling Love , New York Times, November 19, 1981, at C1.

Nolan-Haley J.M. , Amniocentesis and the Apotheosis of Human Quality Control , Journal of Legal Medicine 2 (3): 347, 353 n. 40 (September 1981).

Powledge T. , Prenatal Diagnosis—Now the Problems , New Scientist 69 (987): 332, 334 (February 12, 1976) [hereinafter referred to as Powledge].

Becker v. Schwartz, 413 N.Y.S.2d 895. 903 (N.Y. 1978).

The chance of Joy Turpin being born with the same genetic defect as her sister was stated to be only one out of four in A Preference for Nonexistence, supra note 2, at 491 n. 95.

Turpin v. Sortini, supra note 16, at 345.

“The field is too new and the knowledge involved is far too incomplete and esoteric for a mistake in and of itself to bespeak negligence.” Tort Liability, supra note 2, at 627 n. 31.

Council on Scientific Affairs of the American Medical Association, Genetic Counseling and Prevention of Birth Defects. Journal of the American Medical Association 248 (2): 221, 224 (July 9, 1982) [hereinafter referred to as Prevention of Birth Defects].

Friedman T. Roblin R. , Gene Therapy for Human Genetic Disease? Science 175(4025): 949 (March 3, 1972).

Prevention of Birth Defects, supra note 35.

A Preference for Nonexistence, supra note 2, at 482–83.

Milunsky A. , Prenatal Genetic Diagnosis and the Law , in Genetics AND THE Law II. supra note 2, at 61–67.

Diminished Lives, supra note 1, at 105.

Tort Liability, supra note 2, at 657, 666; Note, Father and Mother Know Best: Defining the Liability of Physicians for Inadequate Genetic Counseling, Yale Law Journal 87 (7): 1488 (1978).

For the hazards of amniocentesis, see Prevention of Birth Defects, supra note 35. Even ultrasound, once thought to be harmless, has come under suspicion recently; see Hinds M. , Evaluating Hazards in Ultrasound , New York Times, July 31, 1982, at 13.

Schrage E. Engel P. , The Decision Maker's Dilemma—Balancing Risks on the Fine Line Between Cost and Compassion , Sciences 22(6): 26 (August/September 1982).

Tort Liability, supra note 2, at 623 n. 17; A Preference for Nonexistence, supra note 2, at 497.

Chapman S. , What are Your Odds in the Prenatal Gamble? Legal Aspects of Medical Practice 7(3): 30 (March 1979). The author states that following the decision of the Texas Supreme Court in Jacobs v. Theimer, 519 S.W.2d 846 (1975) (awarding damages to a woman whose child was born with major defects after her physician failed to diagnose rubella during her pregnancy), many general practitioners in rural areas of Texas gave up their obstetrics practices because they could no longer afford the insurance premiums. See also The Defective Child, supra note 17, at 37–38.

Diminished Lives, supra note 1, at 101.

Prosser , supra note 4. §§42-44.

165 Cal. Rptr. 477 (Cal. App. 1980).

Schmeck H.M. , Fragile X Chromosome Found to Cause Retardation in Boys , New York Times, July 31, 1981 at A24.

See Righting the Wrong, supra note 5, at 8. “She [Shauna Curlender] sought an additional $3 million in punitive damages on the grounds that the defendants knew their testing procedures were likely to produce a substantial number of false negatives and yet proceeded to use them… .”

The Curlender case was reportedly settled for $1.6 million dollars. Harper T. , Paying For Birth Risks , National Law Journal 4 (31): 1 (April 12, 1982).

Tort Liability, supra note 2, at 658.

Diminished Lives, supra note 1, at 105.

Williams P.C. , Wrongful Life: A Reply to Angela Holder , in The Law-Medicine Relation: A Philosophical Exploration ( Spicker S. Healy J. Engelhardt H. , eds.) (Reidel, Boston) (1981) at 248 [hereinafter referred to as A Reply to Angela Holder].

Diminished Lives, supra note 1, at 105.

Id. at 711 ( Werntraub C.J. , dissenting in part). 57. Diminished Lives, supra note 1, at 103; The Continuing Wrong of “Wrongful Life.” supra note 2, at 89; Goldstein C. Hirsh H.L. , Wrongful Life. Medical Trial Technique Quarterly, 28 (3): 279, 287 (Winter 1982).

Prosser , supra note 4, $127.

A Reply to Angela Holder, supra note 54, at 247.

Turpin v. Sortini, supra note 16, at 346.

Id. at 348.

Cal. Civ. Code §206 (West 1971); see Turpin v. Sortini, supra note 16, at 348 n. 12.

Eugenic Abortion, supra note 8; Diminished Lives, supra note 1, at 103.

Diminished Lives, supra note 1, at 103.

A Preference for Nonexistence, supra note 2, at 504 n. 161.

Taub S. , Withholding Treatment From Defective Newborns. Law, Medicine & Health Care 10 (1): 4, 9 (February 1982).

Righting the Wrong, supra note 5.

Morris C. , Morrison Torts (Foundation Press, Brooklyn, N.Y.) (1953) at 348.

On Determining Liability for “Wrongful Life,” supra note 2, at 216.

See The Defective Child, supra note 17, at 31 (suggesting: “The defendant should theoretically be able to counterclaim for the benefits he has caused the plaintiff to enjoy”).

Restatement (Second) of Torts §920 (1977): “When the defendant's tortious conduct has caused harm to the plaintiff or to his property and in so doing has conferred a special benefit to the interest of the plaintiff that was harmed, the value of the benefit conferred is considered in mitigation of damages, to the extent that this is equitable.”

The California Supreme Court, in Turpin v. Sortini, supra note 16, at 347, seems to support this interpretation with respect to the claim for general damages. Comment A to §920 of the Restatement states in part: “If a surgeon has destroyed an organ of the body, it may be shown in mitigation that the operation improved other bodily functions.” If the defendant in Turpin is to bear the responsibility for Joy Turpin's deafness, he should also be credited with her ability to see, smell, taste, etc.

Righting the Wrong, supra note 5, at 9; A Misconceived Tort, supra note 17. at 447; Morrison M.D. , Torts Involving the Unborn—A Limited Cosmology , Baylor Law Review 31 (2): 131, 163 (1979).

Diminished Lives, supra note 1, at 104; Righting the Wrong, supra note 5. at 9.

Shaw M. W. , The Potential Plaintiff—Preconception and Prenatal Torts , in Genetics and the Law II, supra note 2, at 225, 228; Wexler N.S. , “Will the Circle Be Unbroken”'—Sterilizing the Genetically Impaired , in Genetics and the Law II, supra note 2, at 313, 319; A Preference for Nonexistence, supra note 2, at 509 (would allow “X” actions by children against their parents only in extraordinary circumstances); Note, Parental Liability for Prenatal Injury , Columbia Journal of Law And Social Problems 14(1): 47 (1978) (advocates holding parents liable for prenatal injuries which they cause to their offspring).

See Commonwealth v. Edelin, 359 N.E.2d 4 (Mass. 1976).

Milunsky A. , Prenatal Genetic Diagnosis and the Law , in Genetics and the Law II, supra note 2, at 61, 67, 241; Powledge , supra note 30, at 333.

Medical Injury Compensation Reform Act, Stats. 1975, Second Exec. Sess., Ch.2, at 12.5, p. 4007; constitutionality of several challenged provisions were upheld in Fein v. Permanente Medical Group, 175 Cal. Rptr. 177 (1981).

Cal. Civ. Code §43.6 (West 1981).

S.D. Codified Laws Ann. Ch. 21-55. §§1-4 (1981).

See Wrongfully Causing One To Be Born, supra note 9, §6.

Brown George A. , Wrongful Life: A Misconceived Tort—An Introduction , University of California at Davis Law Review 15 (2): 445, 447 (1981).

Holmes O.W. Jr. The Common Law (Little, Brown & Co., Boston) (1923) at 1.