An Oregon couple is suing because a test missed that the child had Down syndrome, which had they known, would have resulted in their child’s abortion. From the story:
In the months before their daughter was born in 2007, Deborah and Ariel Levy worried the baby might have Down syndrome. They say a doctor at the Legacy Center for Maternal-Fetal Medicine assured them that a sample of tissue taken from the placenta early in the pregnancy ruled out the developmental disability, despite the results of later testing that showed the fetus might have it. But within days of the birth of their daughter, the Southwest Portland couple learned the baby did have Down syndrome. Had they known, they say, they would have terminated the pregnancy. Now they’re suing in Multnomah County Circuit Court, seeking more than $14 million to cover the costs of raising her and providing education, medical care, and speech and physical therapy for their daughter, who turned 2 this month. The suit also seeks money to cover her life-long living expenses.
This is not the same thing as when a physician’s negligence injures a fetus. Seeking to have the injury causer bear the cost of caring for the child after he or she is born is a legitimate subject of litigation. But the doctor in this case didn’t injure anyone.
These “wrongful birth” lawsuits are pernicious and support the new eugenics project upon which society has embarked. Eugenic abortion may be legal, but as a matter of public policy, doctors should not be punished simply because a baby was born.
June 15th, 2009 | 2:05 pm
[...] that their baby has Down, which had they known, would have resulted in abortion. As I state in my post about this at Secondhand Smoke: This is not the same thing as when a physician’s negligence injures a fetus. Seeking to have [...]
June 15th, 2009 | 2:25 pm
Jeez, if it’s not one thing, it’s another!
Here in America, you’ve got these people suing for being “stuck” with a baby they don’t want because she’s mentally challenged (while there’s a mile-long waiting list of people who’d love a chance to adopte her).
Over in England, a couple is in an uproar because an embryo they created and froze was accidentally implanted into hte wrong woman (who subsequently was given a morning-after pill so she’d abort if the baby happened to implant).
Here’s the link to the British story:
http://news.aol.com/health/article/ivf-embryo-mixup/527071?icid=main|htmlws-main|dl1|link5|http%3A%2F%2Fnews.aol.com%2Fhealth%2Farticle%2Fivf-embryo-mixup%2F527071
June 15th, 2009 | 2:47 pm
From the article: The Levys declined to be interviewed. Their attorney, David K. Miller, said the toddler is as dear to them as their two older children but they fear being perceived as “heartless.”
Oops – too late!
June 15th, 2009 | 2:52 pm
Usually I’m at a loss as to where your illustrations come from. But I know where this one comes from! It’s from “Zelda II: The Adventure of Link”, an old Nintendo game from 1988. Error is the guy on the t-shirt. He’s a minor character; when you first meet him all he tells you is, “I am Error”, the same text as in the picture. When you reach the right point in the story, you’re told to visit Error, who now gives you a clue as to what to do next.
Of course, Error is a pretty strange name. The best explanation I’ve ever heard is that it’s an error (ha ha). Supposedly the character is named Errol, as in Errol Flynn. But Japanese doesn’t have separate “r” and “l” sounds, and the translator wasn’t in on the joke. So he gave us “I am Error”, which is a lot funnier than “I am Errol”.
(Of course, it’s only funny because it’s in a game. It’s not so funny when parents believe their children really are errors.)
June 15th, 2009 | 3:41 pm
Kyle: I spend a lot of time looking for illustrations for the posts. Most come from Google Images.
June 15th, 2009 | 7:37 pm
Sh…tuff happens.
June 15th, 2009 | 8:36 pm
It’s my understanding that some states have laws prohibiting wrongful birth suits. Wesley, can you give us some idea of which states permit such suits? Maybe a link?
June 15th, 2009 | 9:08 pm
[...] areas as euthanasia, abortion, assisted suicide, eugenics, and the sort. Anyway, here’s a story I couldn’t help but link to [...]
June 15th, 2009 | 9:23 pm
Lydia: That info is in the story I linked.
June 16th, 2009 | 6:34 am
Here’s another line from the article that’s worth quoting:
And in order for the suits to succeed, courts must be willing to rule that “it’s better not to exist and give damages for having to exist,” Caplan said.
June 16th, 2009 | 11:10 am
[...] You’re right, Wesley. “Wrongful birth” lawsuits truly are pernicious. Suing because a baby was not aborted is a sick perversion of justice. But sadly, reproductive technology is making this kind of injustice an everyday occurence: A mother desperate to have a second child has told how she lost her last IVF embryo when the NHS implanted it into the wrong patient. [...]
June 16th, 2009 | 11:40 am
I know some people will disagree with this, but you need to look at it from a legal perspective. Who is liable depends on who was responsible for conducting the test. If the physician conducted it himself and did it poorly, or misinterpreted the result, then he’s obviously guilty of malpractice (i.e., he either acted outside the scope of his responsibility, or he acted incompetently within it). On the other hand, if he relied on information obtained from a pathology lab, he might be off the hook; but then the lab should be responsible to the plaintiffs for screwing up the analysis and giving them wrong information. Fact is, the plaintiffs solicited and received “expert” information that they relied on, to their financial detriment. The fact that they would have aborted a Down syndrome child, a perfectly legal (if not necessarily “moral”) option, is at the very heart of the matter. The wrong information caused them to make the wrong decision. Whether or not one believes it’s right or wrong to abort a Down’s syndrome child is, legally speaking, beside the point.
June 16th, 2009 | 12:45 pm
HW, I don’t think it’s beside the point. The legal rationale by which the couple is seeking damages is that they “missed their chance” to abort their daughter, and now have no choice but to raise her, with the accompanying challenges and medical expenses. There’s no evidence that medical malpractice *caused* their daughter’s disability, just that the botched test made the couple miss their legal window for ending their daughter’s life.
For the court to award damages, they have to rule that not only is aborting a fetus with Down’s Syndrome legal, but that *simply being alive* with Down’s Syndrome constitutes an unacceptable situation, to which someone is owed damages for not killing the person with Down’s Syndrome when they had the chance. By comparison, it’s perfectly *legal* to abort a female fetus because the parents want a son, but they would have no right to sue their OB/GYN for damages if they mis-guessed the fetus’ gender and a girl was born.
This is the legal establishment of “Life Unworthy of Life”, and it’s a hideous precedent.
June 16th, 2009 | 1:11 pm
Right you are SparcVark. And it is part of the process of establishing the right, not just to have a baby, but to have only the kind of baby we want.
June 16th, 2009 | 1:54 pm
Just popping in to thank you for your latest (in the process of tweeting) and to wish you good luck with your upcoming involuntary euthanasia speech (Thursday..?)..
Great big cyber hugs from Talking Rock..
PS.. Have you seen brand new anti-health care rationing (?) bill that was supposed to have been introduced yesterday..? Sen. Jon Kyl, for one.. Long road ahead, I’m sure, but haven’t stopped crying yet in hearing it..
June 16th, 2009 | 4:33 pm
As a mother of a son with Downs Syndrome, I read this and reread it. The only way I can make sense of this, is that the parents are really angry, really upset that they have a child with a disability and owing to the doctors not being able to predict with absolute certainty that they would not, they now have a deep pocket to punish for the daughter they have.
June 16th, 2009 | 7:27 pm
I think that these suits should be banned on the grounds that they are the outgrowth of prejudice. What if, in the future, when there is a test to detect sexual orientation, as there undoubtedly will be, parents sue because their son or daughter is gay and the tests didn’t pick that up? Will that be met with so much social approval?
June 17th, 2009 | 10:02 am
SafePres:
Right now it looks like the legal justification in use is that certain lives are “not worth living”, so that people who live them when they could have been killed (or their parents) are owed damages for being alive. I’m certain that parents would never be able to sue under that justification if their child was gay, the “wrong” gender, etc.
However. There’s a trend in fertility medicine towards not just producing “a” child, but hunting for the “best” traits and genes possible. If a couple has spent a lot of money to get the “best” child possible, and get something else, they could ask for damages for breach of contract – “I paid for a six-foot blonde son who can run a five-second 40 with good math skills, and I got a short, brunette daughter with perfect pitch”. This would mean treating children as bought & paid for products rather than human beings, which is another hideous precedent.
June 17th, 2009 | 5:15 pm
Can we even write Satire anymore in this day and age? Brave New World…we shall be flawless everywhere but inside.
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