If signed by Governor Jan Brewer, Arizona would join nine other states in banning so called “wrongful birth” and “wrongful life” lawsuits. The bill has passed both houses of the state’s legislature and is awaiting a decision by the governor.
In a wrongful birth lawsuit, parents allege that the doctor was negligent in his or her prenatal care by failing to diagnose or detect severe birth defects like Down’s syndrome, cystic fibrosis or spina bifida, or failing to inform the parents that a severe birth defect was detected in prenatal testing. Parents often then argue that the pre-birth knowledge of the existence of a severe disability would have led them to abort the child.
Compensation awarded in these lawsuits is used to cover the cost of care these children with severe disabilities will require throughout their lives.
There is only a single exception to the Arizona bill’s outright banning of these lawsuits. In cases of “an intentional or grossly negligent act or omission” parents are able to file medical malpractice lawsuits against their doctor.
According to Gary Marchant, an Arizona State University law professor, there have been approximately 100 wrongful birth and wrongful life lawsuits filed throughout the United States; however, this number only reflects the number of cases that have gone before a jury and does not include cases that were settled or dismissed, meaning the actual number is much higher.
Opponents of the move to ban these lawsuits believe that they unfairly insulate physicians from negligent actions and actually lead to more incidents of negligence, according to The Colorado Independent. Further, banning these lawsuits leaves parents without the ability to seek compensation for significant medical mistakes.