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Recovery of Damages for Wrongful Birth

A moment of one of life’s greatest joys can instantly turn to heartwrenching anguish when a baby is unexpectedly born with severe birth defects. Parents of children with catastrophic birth defects must shoulder enormous financial burdens for the child’s extraordinary medical and life care. This financial burden is often accompanied by devastating feelings of disappointment, sorrow, and worry. Some parents who find themselves in this situation reside in states that recognize a legal remedy for a wrongful birth cause of action. This article surveys the often conflicting body of case law throughout the country on the items of damages potentially available or not, depending on the jurisdiction. Section I presents an overview of the prenatal diagnostic tests that are available to detect severe birth defects, which when performed accurately, yield information that is vital to a parent’s decision to continue or terminate a pregnancy. Errors that result in a mistaken diagnosis are briefly discussed prior to presenting, in section II, a national overview of the status of recognition of the wrongful birth cause of action and the types of damages recoverable for care of the child in those states that do recognize the remedy. Section III addresses parental recovery for emotional distress, and section IV discusses the applicability of statutory damage caps to wrongful birth actions. The article concludes with a recap of available damages, which may total well into seven figures or more, and observations concerning the