Guest blogger Sofia Yakren, Associate Professor of Law, CUNY School of Law writes…

“Wrongful birth,” a controversial medical malpractice claim, likely has a significant anti-therapeutic impact on the individuals it is designed to compensate.  

The claim is typically raised by the mother of a child born with a disability against a medical professional whose failure to provide adequate prenatal information denied her the chance to abort.  To secure damages, a plaintiff-mother is required by law to present evidence—including through her own testimony—that she would have terminated her pregnancy but for the defendant-medical provider’s negligence.  

It is distressing enough for a parent to characterize her child’s existence as a harm in public; making matters worse, scholars, courts, and the media have also blamed and shamed mothers for following tort law’s lead in this way.  

Although plaintiff-mothers often file suit because they lack the funds necessary to raise children with disabilities in an inadequate health care system, legal scholars have portrayed them as the messengers of discriminatory attitudes about disability and have even accused them of supporting eugenics.  Further, scholars have condemned plaintiff-mothers for allegedly failing to embrace, accept, and love their own children unconditionally.  

In the 1967 Gleitman v. Cosgrove case – what has been considered the first significant wrongful birth case – the court portrayed the plaintiff-mother as too lazy to appreciate the preciousness of her child’s life.  The court directed its disdain at the mother, even while accepting that her doctors were profoundly negligent in advising her that her bout with rubella during pregnancy – at the time, a known cause of birth defects – would cause no harm to the fetus.

Media outlets continue to depict plaintiff-mothers negatively, emphasizing the alleged wish that their children had never been born and at times describing them as would-be killers.  Although conservative outlets have led the charge, mainstream media have vilified plaintiff-mothers as well.  

Commentators who question plaintiff-mothers’ maternal devotion against the backdrop of the “good mother” ideal exacerbate the psychological toll the law already imposes.  

While critics and wrongful birth proceedings characterize plaintiff-mothers’ feelings about their children as categorically negative, real life accounts and social science findings reflect the true paradoxical experiences of all mothers, including plaintiff-mothers raising children with disabilities. Both psychoanalytic theory and individual accounts support the proposition that a plaintiff-mother can love her living child deeply, even while testifying that she would have aborted her pregnancy with proper prenatal information.  

To acknowledge this complex reality and mitigate the emotional strain of bringing a wrongful birth claim, several legal reforms are in order:]

  1. broadening the analysis of emotional distress to reflect and legitimize mothers’ paradoxical feelings about their children;
  2. reframing the harm to mothers as loss of reproductive choice rather than as the birth of a flawed child and, accordingly, expanding available economic damages to include plaintiff-mothers’ unexpected childcare responsibilities; and
  1. educating plaintiffs’ attorneys to empathize with the emotional aspects of mothers’ litigation experiences and to collaborate with and counsel mothers accordingly. 

Today’s approach to “wrongful birth” claims, which both stigmatizes disability and strains caretakers, demands urgent reform.

Read Associate Professor Yakren’s full paper here in the Fordham Law Review


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