The pro-life movement is all-too-familiar with offensive wrongful birth lawsuits — but here’s something very different.
The wrongful birth suit is brought by the parents of a sick or disabled child against a physician that, the parents say, was negligent. Wrongful birth lawsuits claim the doctor failed to inform the parents of the illness or disability of the child and that had they known, they would have aborted their child. In other words, the parents are saying we wish our child was dead.
In a new lawsuit, parents are suing because the child is already dead — having been aborted because the baby was wrongly diagnosed as potentially disabled. Here’s more:
After three miscarriages, Colleen Abbott finally had a viable pregnancy and were told they were having a girl. Doctors performed an amniocentesis and eventually the couple got the results and they were not good — they were informed the baby, a boy, might be intersex and have a genetic disorder.
“They gave her a choice: Abort the baby or take the chance of having a monster,” David Johns, the family’s lawyer said.
The couple decided to have an abortion, and that’s when thing really took a turn for the worst.
In what can only be described as tragic timing, a day after the procedure to stop the baby’s heart and a day before Colleen would go into labor, the lab where Colleen’s amniocentesis had been analyzed called to report there had been a mistake. A secretary had mistakenly typed “XY” instead of “XX” in the gender field, an error that Colleen’s lawyer contends “was the first step in the long slide downward.”
An autopsy of the fetus showed none of the defects mentioned during the ultrasound.
The Abbotts sued the lab, the hospital, her doctors, and the genetic counselor, alleging the decision to terminate her pregnancy had been caused by the negligence of each, and was set in motion by the improperly transcribed FISH results. The jury found the lab and its director had been negligent, but stopped short of attributing fault for the abortion itself, refusing to award damages for the Abbotts’ physical and emotional injuries. The verdict was upheld in an appeals court in February.
While no pregnancy comes with a guarantee, there are an increasing number of tests that promise to identify the kind of abnormalities that keep expecting parents up at night. What happens when those tests turn out to be wrong, from a legal standpoint at least, all depends on the outcome.
The Abbotts are the most recent in what legal scholars call “wrongful abortion” cases, in which a woman, guided by inaccurate information about the health of her fetus, decides to abort an otherwise healthy and wanted baby. There is no real way to gauge just how often women terminate healthy pregnancies based on inaccurate medical diagnoses, but anecdotal evidence suggests it’s more common than we hear about.
The law has managed to find a solution to wrongful abortion’s counterweight. In what are known as “wrongful birth” suits, doctors have been found liable for disabled babies born to parents who would have terminated their pregnancies had they been informed of their child’s condition. In 2013, a Washington jury awarded a couple $50 million for the “wrongful birth” of their 5-year-old child, whose rare genetic defect the doctors had failed to catch.
Though wrongful birth and abortion are variants on the idea of informed consent—“If I had known this about my fetus, then I would have made a different decision”—the law is heavily weighted in the direction of wrongful birth.
And therein lies the rub. A couple can win a monetary award of their baby “should have been killed but lived,” but has trouble winning an award if the baby should have lived but was aborted.