by Steven Ertelt
September 9, 2004
Yorba Linda, CA (LifeNews.com) — The parents of a disabled girl have a filed a lawsuit against their obstetrician saying they would have considered aborting her if they would have been told about tests that could have detected her spina bifida in the womb.
Dan Fraker and Colleen Duff, the parents of disabled California girl Leilani Duff have sued Dr. William Dieterich for unspecified damages because they say he failed to tell them of the tests, according to a Los Angeles Times report.
When Leilani was born in August 2003, her parents knew something was wrong. Part of the baby’s spinal cord was exposed and she was sent to another hospital for immediate surgery.
Leilani is paralyzed from the legs down, has learning disabilities and fluid on her brain.
"The whole rationale of the statute is to provide pregnant women with the information so they can make an informed decision about whether or not they want to keep the baby," Larry Eisenberg, the couples lawyer, told the Times.
Eisenberg said the parents likely would have had an abortion had they know their daughter would be born with physical disabilities.
But, that’s the problem, according to pro-life advocates who oppose such lawsuits calling them discrimination against the disabled.
"It is inaccurate, ignorant and discriminatory to assume that persons with disabilities cannot live meaningful and satisfying lives," said Susan Armacost, Legislative Director of Wisconsin Right to Life.
Armacost’s group pursued legislation in her state that would ban wrongful life and wrongful birth lawsuits.
In 1982, the California Supreme Court allowed parents to file wrongful birth lawsuits and dozens have since then. The lawsuits have met with mixed results, with some settling out of court and others ruling in favor of the physician, the Times reports.
As modern medicine enhances the ability to conduct genetic testing in the womb, observers say wrongful birth lawsuits may become more commonplace.
Doctors groups are concerned that the lawsuits put OBGYNs in the position of having to recommend an abortion for fear of a lawsuit if the option is not suggested. Such suits also drive up medical malpractice insurance costs — forcing some doctors to quit the profession.
"On one side you have a liability mess that puts you on the hook for the rest of the child’s life," Dr. T. Murphy Goodwin, chief of maternal-fetal medicine at USC’s Keck School of Medicine, told the Times. "The other side, you have carte blanche to avoid the potential for these kinds of problems by shading the discussion to advocate abortion."
Goodwin says part of the problem is the increasing expectation couples have of birthing a completely health child. Parents often demand genetic tests and are upset when the tests show even cosmetic problems.
Pro-life also groups say such lawsuits are based on the bizarre idea that a child is better off dead than disabled.
"In wrongful birth and wrongful life lawsuits, the doctors have not done anything to cause the child’s disability and should not be sued when they did nothing to cause the child’s impairment," said Armacost.
Abortion advocates have entered the fray and strongly support such lawsuits. Planned Parenthood testified against the Wisconsin measure, as did the American Civil Liberties Union.