HB 4199 by Rep. Dan Flynn –
Eliminate the Wrongful Birth
Cause of Action
Goal: Texas Alliance for Life supports amending Title 4, Civil Practice and Remedies Code, Chapter 71, to statutorily remove the cause of action known as “Wrongful Birth.”
Background: The wrongful birth cause of action is brought by the parents of a child born with a disability, alleging that they were deprived of the opportunity to be informed of the disability in time to abort the child. The claim for damages is based on the cost to parents of raising an unexpectedly disabled child for the duration of that child’s life. The first successful wrongful birth case was the 1975 Jacobs v. Theimer case in Texas.
A claim by NARAL Pro-Choice Texas and repeated by The Huffington Post that such legislation “would allow doctors to lie to their patients” is patently false. The draft bill explicitly says the law “may not be construed to eliminate any duty of a physician or other health care practitioner under any other applicable law.”
In other words, this bill does not change the standard of care for doctors; it simply removes the cause of action in Texas for a “wrongful birth.” That means doctors treating pregnant women continue to be required to give available information to their patients. Current law, as enforced by the Texas Medical Board, requires physicians to tell their patients about the availability of prenatal diagnostic tests and, if given, the results of those tests. Failure to do so risks disciplinary action including possible fines, suspension, and loss of license.
Other States: Several high-profile “wrongful birth” cases have occurred in other states resulting in multi-million-dollar settlements. For example, in Washington State, $50 million was awarded over a child born with “unbalanced chromosome translocation” in 2013. A jury in Oregon awarded almost $3 million to a couple whose daughter was born with Down’s syndrome in 2012. In 2011, a jury in Florida awarded the parents of a child born with no arms and one leg $4.5 million in a wrongful birth case.
Already 22 states do not recognize or have banned the “wrongful birth” cause of action, and Texas needs to join them. Importantly, in each of the cases where the statute eliminating the cause of action was challenged, it was upheld.
Public Policy: The wrongful birth cause of action is bad public policy for several reasons.
- Wrongful birth lawsuits send the message that a child with a disability would have been better off had he or she been aborted.
- Wrongful birth liability may encourage medical personnel to over-cautiously seek out all potential disabilities and promote abortion in order to avoid liability.
- Wrongful birth lawsuits make medical professionals liable for a disability they did nothing to cause.
There are social programs & funding available to help parents with the costs of raising a child with disabilities. These are much more appropriate remedies for parents of disabled children.
Leg. ad. paid for by Texas Alliance for Life
