LEGAL ACCOUNTABILITY: WRONGFUL LIFE SUITS
Support for amniocentesis and selective abortion, in the absence of gene therapy, may come from an unexpected direction. Using a tort action known as wrongful life, children born with genetic defects have sometimes sued physicians whose duty it was to warn parents of potential genetic conditions. At first these cases were not accepted for legal action because the courts could not measure the value of a life lived or unlived. However, some cases are now being heard, although none has been won yet by the plaintiff (28).
These cases differ from typical malpractice cases because they presume that a person's life should never have existed at all, if the defendant had done his or her duty. To date, a wrongful life action has not been brought by a child against parents. In the past, children were constrained from suing parents, but courts now permit cases that involve property and finance (29). In 1987, an Illinois appeals court ruled that a 5-year-old girl, injured in a car accident while still in her mother's womb, could sue her mother for negligence (30). If a child born with severe deformities or a genetic defect decided that the parents could have detected the disorder prenatally, a suit against the parents might be based on wrongful life or negligence. Justice Oliver Wendell Holmes wrote a legal opinion in the late 1880s stating that there is "a conditional, prospective liability for one not yet in being" (31). Later courts have argued that every child has a right to begin life with physical and mental health (32). Marjorie Shaw, M.D., J.D., an expert in law as it pertains to genetics, has concluded that
knowingly, capriciously, or negligently transmitting a defective gene that causes pain and suffering and an agonizing death to an offspring is certainly a moral wrong if not a legal wrong. Thus, if reproduction is contemplated (or not consciously prevented) there is an ethical obligation not to harm the offspring and one's genotype should be determined so that appropriate steps can be taken to avert the disease in future generations. (33)
Pressures on parents to use genetic services will certainly, in part, be considerations of ethical duty to the child and responsibility to society. Parents might also choose to do what is most convenient for them, feeling themselves incapable of or unwilling to raise a handicapped child. But the moral and ethical responsibilities of the parents to do no harm to their children may yet be reinforced by court actions. After all, the children suffer the handicaps, not the parents.
(I just can't see my Mom escorting me into a courtromm where she argues that she wishes I had never been born at all. I also can't see how a dead child is better than a handicapped child. Is it just me?)