As published in Sebastian’s Point, Society of St. Sebastian, 21 February 2019
In Texas, if a baby is born with a disability and the doctor did not tell the parents about the disability or misdiagnosed the unborn child, the parents can sue the doctor for damages. This horrible cause of action is called “wrongful birth” and it must be abolished.
Texas was the first state in the union to develop this legal standard in a 1975 case which is now the norm across the country. 22 states already prevent this cause of action. Doctors have a duty to treat their patients with dignity and respect. But because “wrongful birth” is a cause of action, it can lead to doctors overzealously searching out disabilities and even feeling pressured to recommend abortion to avoid liability. Doctors should not be driven by such fears.
Texas Alliance for Life has been working on repealing this cause of action in Texas. Last session, Texas Senate Bill 25[i] was filed by Senator Brandon Creighton (R- Conroe) and sponsored by Representative Ron Simmons (R-Carrollton) in the House. SB 25 was passed out of the Texas Senate 21-9 but was not voted out of the Texas House before the legislative session ended. Texas Alliance for Life is working hard to get this bill again this session and we are hopeful it will pass both chambers and make it to Governor Abbott’s desk.
Critics of this bill have falsely claimed that it will allow doctors to lie to parents. This is absolutely untrue. The bill’s whole purpose can be seen as supporting the first principle of the Hippocratic Oath: do no harm. This should be the guiding norm for doctors, not fear of lawsuits. But lying is a form of harm, and the bill in no way encourages it. The bill clearly states that it cannot be construed to eliminate any other duties of physicians under applicable laws. Doctors are legally required to present all available information to their patients, and let patients know of available and necessary tests and then to discuss those test results. Doctors must provide the information that patients request to the best of their ability. But doctors should never be forced to recommend abortion to their patients for fear of being sued.
Even beyond the basic conscience protection that should be afforded to physicians, what kind of message are we sending to people in the disability community when we award enormous settlements to parents for children being “wrongfully born?” In the past several years, various wrongful birth lawsuits have gone to trial and juries have awarded multi-million dollar judgments. In 2011, a Florida jury awarded $4.5 million to a couple whose son was born without arms and only one leg for wrongful birth.[ii] Also in 2011, Boston parents of a girl born with cri-du-chat syndrome were awarded $7 million for wrongful birth. In 2012, a jury in Oregon awarded $3 million to Ariel and Deborah Levy when they brought a wrongful birth suit after discovering their daughter had Down Syndrome.[iii]
Do we want to send the message to disabled Texans that their lives are a mistake? States that permit “wrongful birth” as a cause of action suggest that persons with disabilities who are our neighbors, friends, and family members should never have been allowed to make it through the birth canal alive. They suggest that persons with disabilities are not intrinsically valuable, but burdens whose lives can be measured in dollars and cents. This is a utilitarian error that is incompatible with the American ideal of the equal dignity of all persons.
Such an ableist message was given to the parents of Misty Boyd in a Texas hospital in 1983. Misty was born with previously undiagnosed spina bifida. When she was born, the doctor immediately apologized to her parents. He was apologizing for not diagnosing her disability while she was still in the womb, so that she could have been aborted. Her mother’s doctor suggested Misty’s parents could fix this problem by simply not feeding her. Thankfully, Misty’s parents were appalled by this barbaric suggestion and they fed and cared for their daughter. Misty is alive and well today, she loves her life and she is speaking out in support of legislation that bans the wrongful birth cause of action because she knows every life, regardless of ability, has dignity and is worthy of protection.
Texas must eliminate the wrongful birth cause of action, because no child is wrongfully born. We must protect doctors from this terrible cause of action, we must send a life-affirming message to those with disabilities that their lives matter, and we must protect those with disabilities from discrimination, starting in the womb.
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[i] The bill may be viewed here: https://capitol.texas.gov/BillLookup/Text.aspx?LegSess=85R&Bill=SB25.
[ii] See https://blogs.findlaw.com/injured/2011/09/fl-wrongful-birth-lawsuit-ends-in-45m-award.html.