Kentucky Supreme Court Overturns Wrongful Life Lawsuits

State   |   Steven Ertelt   |   Aug 22, 2003   |   9:00AM   |   WASHINGTON, DC

Kentucky Supreme Court Overturns Wrongful Life Lawsuits

by Steven Ertelt Editor
August 22, 2003

Frankfort, KY ( — The Kentucky Supreme Court has overturned two "wrongful life" lawsuits filed by parents who claim doctors did not properly diagnose physical disabilities in their children before birth and provide them with an opportunity to have abortions.

The court said the loss of an "opportunity" to have an abortion did not constitute a "legal injury," a necessary element of negligence lawsuits.

"The plaintiffs contend injury was in their taking an unwanted pregnancy to term," Chief Justice Joseph Lambert wrote. "We are unwilling to equate the loss of an abortion opportunity resulting in a genetically or congenitally impaired human life … with a cognizable legal injury," the opinion said.

The cases involved two families — Kimberly Grubbs and daughter Carlei Nacole Grubbs and Gretchen and Daniel Bogan, parents of Nathan Bogan. In both cases, the doctors are accused of failing to discern physical birth defects from ultrasound exams and telling the parents they could decide to abort the baby.

Carlei Grubbs was born with severe spine and head deformities and is paralyzed from the waist down. Nathan Bogan was born without eyes or brain but has a brain stem that supports minimal life functions.

Pro-life groups were pleased with the ruling and its basis.

"This decision affirms the value of all human life, including children and adults living with disabilities, handicaps, or birth defects," Denise Burke, a staff attorney with Americans United for Life, told "It is also in keeping with the majority of jurisdictions — at least 37 states — that have rejected so-called ‘wrongful life’ lawsuits."

Justices William Cooper, William Graves and Martin Johnstone joined in the opinion.

Justice Donald Wintersheimer said in a concurring opinion that the Court of Appeals’ reasoning "would place the courts in the position of affirming that death, or non-existence, is preferable to life."

Two Kentucky Supreme Court justices went so far as to say the idea evoked the Nazi era under Adolf Hitler because the thought of "wrongful life" lawsuits wreaks of eugenics and discrimination against those with physical disabilities.

The rulings overturned a decision by a state appeals court that allowed the lawsuits to proceed. Two trial courts hearing the initial cases agreed that the lawsuits had no legal merit.

Burke told, that, if allowed, wrongful life lawsuits would "expose physicians to additional liability and drive up health care costs."

More importantly, it could encourage abortions.

"Of even greater concern is the fact that allowing such lawsuits would create a financial incentive for physicians to encourage or recommend abortion when diagnostic results are borderline, where the physician is cautious, or when the physician becomes concerned about his or her failure to perform certain diagnostic tests such as prenatal genetic screening which are not 100% accurate in detecting abnormalities," Burke concluded.

Related web sites:

Kentucky Supreme Court Opinion –

Americans United for Life –