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It’s an issue the Louisiana courts have been trying to dodge for nearly forty years.  Finally, an appellate court had to answer it: can being born with a birth defect give rise to a cause of action in Louisiana?

There are some deep and complicated roots to this question.  In broad strokes, a 1965 case called Griswold v. Connecticut resulted in the U.S. Supreme Court throwing out all state laws that restricted counseling women in the use of contraceptives.  Overnight, and for the first time in history, American women enjoyed safe, effective and legal reproductive freedom nationwide.  It was a seismic decision that transformed the nation’s social, political and legal landscape in countless ways; culminating seven years later in Roe v. Wade.  

However, recognizing a nationwide right to personal reproductive freedom led to an inevitable if unintended consequence: when a doctor blows it and the patient gets unexpectedly and unwillingly pregnant, that doctor is getting sued.  So, shortly following Griswold and Roe, courts all across America in the 70s and 80s began facing unwanted pregnancy cases that took the form of two related, novel questions.  

First: whether parents can sue when a doctor’s negligence leads to an unwanted pregnancy, which our courts call “wrongful birth.”  

Second: whether a child conceived in an unwanted pregnancy can sue the doctor (via her parents, of course) for being born.  Mostly, but not exclusively, these claims arise from genetic defects that will make the child’s life difficult if not unbearable. Our courts call these claims, perhaps a bit melodramatically, “wrongful life.” 

Most courts throughout the United States looked at the “wrongful birth” question and answered, “sure.”  The inescapable logic of a pretty straightforward malpractice claim meant judges would have to dream up policy reasons to deny them, and judges really hate doing that.  After all, when you strip away the glitz, this is not really different from a garden variety tort or other med mal case.  The doctor erred, the child was born as a result, and the parents now have to pay for this kid at least until she turns 18.  Even if she is a strapping, healthy girl, you are still talking hundreds of thousands of dollars in child rearing expenses the parents relied on the doctor to prevent but are now on the hook for.  Duty, fault, causation and damages are pretty much wrapped up with a neat bow.  So the only reason to deny the claim would be public policy; or what I like to call the “ick” factor.  In other words, the court wouldn’t want to be in a position of publishing an opinion for the world to see where this kid’s parents say they never wanted her; that they were so outraged over her birth, they filed a lawsuit because of it.  

Just imagine high school for this poor kid, especially in the Information Age.

Here in Louisiana, the courts started dodging this question around 1986.  Litigants kept bringing it up before different courts around the state, and judges kept finding ways around answering it.  Either by finding the facts didn’t neatly fit the question, or by blaming the legislature for failing to act, or by finding some arcane flaw in the procedure, Louisiana courts have been remarkably agile in finding reasons to avoid a straightforward answer as to whether parents can sue for damages for a child they never wanted. 

The second question, whether the child has a claim for being “wrongfully born,” is far more controversial; and, I think, far more interesting.  It is controversial because it usually implicates a genetic abnormality that will significantly reduce the child’s quality of life.  The argument is not really that the doctor’s negligence caused the child’s condition, although that may indeed be the case.  It is more that because of the condition, the child would be better off never having existed at all.


Despite the grim overtones, I like this second question because it raises not only legal issues, but also deep philosophical, religious and moral issues that cause judges to dust off their old college texts on existentialism and nihilism and confront fundamental truths of the human condition.  What is the value of a human life?  Are there certain conditions which outweigh the gift of life, such that a person would be better off never having been born?  If so, where is that line?  

And most importantly: are judges qualified to make that determination?  Are any of us?  

It is a fundamentally weird question for the law to address.  It requires black-robed judges to put themselves in the position of the child, project forward to what hardships her life is likely to entail, and ask: is it all worth it?  

You can see why I find this so fascinating.  I can think of no other question in the law that gets so deeply existential and dare I say a bit poetic.  It implicates the thinking of classic philosophers far more than it does that of classic legal theorists. 

And yet, like the related question of a parent’s claim for “wrongful birth,” Louisiana courts have been singularly creative at avoiding answering whether a child has a claim for “wrongful life.” No Louisiana court has ever upheld such a claim, but they always left open the possibility that the claim exists in our laws.  In each case, the court found a way to rule that the claim failed for other reasons: that the doctor did not have a duty to prevent albinism, or that it was not reasonably foreseeable that cerebral palsy would result from a botched tubal ligation.  

That ended last June, when the Louisiana 2nd Circuit finally had to address the “wrongful life”  question head on in Robinson v. Mitchell.  In that case, Dr. Mitchell performed a standard battery of tests for genetic abnormalities for Ms. Robinson’s fetus, which included testing for genetic markers for Down Syndrome.  Long story short, his office messed up and misrecorded a positive result as negative.  There was not much factual dispute to the claims the plaintiffs raised, and fairly early on in the suit, the parties reached a settlement which required the approval of the Louisiana Patient’s Compensation Fund (this acts as a kind of self-funded insurer for medical malpractice claims in Louisiana).  While it isn’t exactly clear, it appears the PCF agreed to settle the “wrongful birth” claim because it wasn’t before the Court.  But the PCF did object to the settlement on the grounds that there is no such thing as “wrongful life” in Louisiana, so the court had no choice but to make a policy decision on this question.

On the legal side of the answer, the Court noted Louisiana’s commitment to protecting the life and wellbeing of the unborn.  Enactments in our Civil Code provide that the unborn are considered “natural persons.”  It gives them capacity to receive donations, protects their interest in successions, and provides parents a claim for their wrongful death. 

The Court also noted the “ick” factor of the case serving as an eternal reminder to the child that her parents, and perhaps a jury of her peers, judged her life not worth living.  

I think the court has a point that Louisiana has a “culture of life” that fixates on the unborn, and most Louisianans would probably find these arguments repulsive.  Also, I fully get the “ick” factor.  There is no way around the hurtful expression of what can only be called a public rebuke of a child’s very existence.  No doubt, this occurred to the Robinsons.  The same thought would weigh heavily on the mind of any parent who found herself confronting this decision, which they must make when they see no other option. 

The Court loses me a bit on the legal implication of these rules.  These codal articles simply fulfill a practical need to define rights under certain conditions.  Sure, Louisiana has a keen interest in protecting the unborn, but that doesn’t mean these articles are some grand moral statement by the legislature, as much as a pragmatic response to the need to fashion a legal framework for a not uncommon problem.

But then, the Court really goes off the deep end in its philosophical analysis.  In the first ever direct take down of the very concept of “wrongful life,” the Court framed the claim as a “child’s request for an abortion.”  Noting that the first law of nature is self-preservation, it is “akin to requesting assistance in suicide.”

Now, nobody brought up actually aborting the child, who had already been born by then.  And no one was suggesting assisted suicide.  The parents did say they would have gotten an abortion had they known of her condition.  That’s obviously not the same thing. Still, the Court took that ball and ran with it anyway, more or less implying that even asking what is the value of a life threatened to open the door to actual eugenics.  It is pretty clear from the Court’s tone that they not only reject the concept of wrongful life, but that if they could, they would gladly question the tenets of reproductive freedom that Roe v. Wade represents in the first place.

The rest was a foregone conclusion.  The Court made some very good points refuting the plaintiff’s claim that being born with Down Syndrome is always preferable to not being born at all.  People with Down Syndrome are not as stigmatized as they once were, and medical and societal advances have helped them live well into old age.  But I think this just underscores (while somehow also missing) the point.  Certain birth defects, like Down Syndrome, undoubtedly reduce the quality of life.  Since the Court is able to recognize that the reduction in quality of life is not nearly as bad today as it once was, by definition there is a measurable difference over time.  So why can’t they quantify it?  

It is not remotely controversial that diminished quality of life is a compensable claim recognized in our laws.  Quality of life for the child, quality of life for the parents, in addition to the added hard costs of caring for a child with Down Syndrome – possibly for life – these are all quantifiable.  And I am sure it could have been done without resorting to histrionics that fall just short of accusing the kid’s parents of wanting to abandon their child to die in the woods.

So that’s it then.  There is no claim for wrongful life in Louisiana.  

Well, maybe, maybe not.  

The Louisiana Supreme Court refused to hear the case in November, so this is indeed now the law in the Second Circuit.  But that doesn’t make it the law in the rest of the state.  Another circuit could take up the question and come to a different conclusion, which might give the Supreme Court no choice but to intervene.  It took us nearly forty years to get to the point where one court got cornered into an opinion. It may take decades before another court looks at the matter.  In the meantime, reproductive medicine and technology will continue marching forward.  Who knows what advances will be made, or how they shape this question, by the time it does come up again.

Greg Nichols

Author Greg Nichols

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