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The Risk of Birth Defects: Jacobs v. Theimer and Parents’ Right to Know

Published online by Cambridge University Press:  24 February 2021

Miriam Kass  and
Margery W. Shaw
Miriam Kass
Affiliation:
Smith College; Rice University; Medical Genetics Center, the Graduate School of Biomedical Sciences of the University of Texas Health Science Center at Houston; University of Houston, 1977
Margery W. Shaw
Affiliation:
University of Alabama; Columbia University; University of Michigan; University of Houston; Yale Law School; Medical Genetics Center, the Graduate School of Biomedical Sciences of the University of Texas Health Science Center at Houston
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Abstract

This Article discusses the Texas Supreme Court's holding in Jacobs v. Theimer that the parents of a defective child had a cause of action for damages against a physician for alleged negligent failure to inform the mother during pregnancy that she had contracted rubella and therefore might have a defective child, thereby causing her to lose the opportunity to have an abortion. The Article raises a number of questions that posi-Jacobs courts probably will confront concerning the duty of physicians and genetic counselors to keep their clients informed; describes some social and medical developments—including recent progress in medical genetics and prenatal diagnosis—which are likely to make Jacobs a significant precedent; evaluates the court's decision to allow a damage suit only for the costs of treating and caring for the child's defects; and briefly addresses the question of whether the Jacobs case comes within the sphere of suits for what has come to be known as “wrongful birth” and “wrongful life.”

Type
Article
Information
American Journal of Law & Medicine , Volume 2 , Issue 2 , Winter 1977 , pp. 213 - 243
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1977

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References

1 519 S.W.2d 846 (Tex. 1975).

2 Id. at 847. The court described the parents’ pleadings and depositions as follows:

Mrs. Jacobs became ill (with what they now know was rubella) in early July of 1968 while on a brief vacation trip. When she returned home she consulted Dr. Theimer and was hospitalized. During that hospitalization Dr. Theimer informed her that she was pregnant. The discovery alarmed her and she asked him if her illness might have been measles, but he assured her that this was not so. Seven months later, in March of 1969, the child was born. On March 21, 1969, the parties first learned of the extensive toll of the rubella upon the child. Heart surgery was performed in June of 1969, and this was followed by many operations and treatments in Houston, Dallas, Baltimore, and Washington. By the time of the trial in 1973, the medical costs totaled $21,472. The plaintiffs say that they would have had the pregnancy terminated if they had been properly informed by the defendant doctor. Mrs. Jacobs says in her deposition that if it had not been for the assurance of Dr. Theimer: “I would have gone to any length to have found out what the chances of my child were, and after having found this out, I would have done the kindest thing that I could have known to have done for her, and that would have been to terminate the pregnancy.” Id.

3 507 S.W.2d 288.

4 Id. at 290-92. The Texas criminal abortion statutes were declared unconstitutional by the U. S. Supreme Court in Roe v. Wade, 410 U.S. 113, 95 S.Ct. 705,35 L.Ed.2d 147 (1973). Those statutes were Tex. Stat. Ann. arts. 1191-94 and 1196 (Vernon).

For a detailed newspaper series describing what it was like in Texas, particularly in Houston, before Roe struck down the Texas abortion statutes see Kass, Abortion, Houston Post, Sept. 27, 1970, § A, at 1, col. 3, and § AA, at 1, col. 1; Sept. 28, 1970, § A, at 1, col. 3, and § AA, at 1, col. 1; Sept. 29, 1970, § A, at 1, col. 3 and § AA, at 1, col. 1; Sept. 30, 1970, § A, at 1, col. 3, and § AA, at 1, col. 1; Oct. 1, 1970, § A, at 1, col. 3, and § AA, at 1, col. 5; Oct. 2, 1970, § A, at 1, col. 3, and § AA, at 1, col. 1.

The series describes medical, legal, and social attitudes and practices and tells the diverse stories of six individuals and what they experienced in connection with the decision to abort and its aftermath. Hospital abortion committees authorized abortions that would clearly have been against Texas law. The committees often were inconsistent in their decisions, which frequently required that several specialists be brought into a case. Illegal abortionists, whose abilities were often unknown to the woman seeking an abortion, were available at a wide range of prices and qualities. An abortion referral service (which also provided excellent counseling) was referring to Mexico City, and later to California and New York. Most strikingly, women, whether proceeding through legal or illegal channels, were embarrassed, humiliated and sometimes bullied because of their problem. Women with enough money or contacts could get the attention they needed, while usually women of low or modest means had to accept an unwanted pregnancy or risk a cheap, illegal one. Id.

5 Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975).

6 Id. at 848.

7 Id. The court reasoned that in order to have run the risk of being criminally liable as an accomplice, the doctor would have had to advise the committing of an illegal abortion, which he had not (the court pointed out that all the parents sought from the doctor was information about the woman's illness and the possible risks to the child, not advice on, or even a discussion of, abortion). Id. The court's rejection of the “accomplice” argument seems to have been influenced by its view that if the parents (possessed of full knowledge about the rubella and its dangers to the child) had chosen to abort, they would have sought a legal abortion. Id. Apparently the court felt that such an abortion would have been obtained outside Texas, in some jurisdiction where abortion aimed at preventing the birth of a defective child was lawful—perhaps Colorado, mentioned as such a jurisdiction in a footnote by the court. Id. at 847. It is interesting to speculate whether the Jacobs court's taking of the parents’ side was influenced by the fact that the U.S. Supreme Court had made most abortions lawful throughout the country. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Technically, of course, the floe decision should not have influenced the Jacobs court's decision, since Roe was decided after the alleged negligent acts of the physician.

In Jacobs, there was a strong dissenting opinion by Justice Pope, who pointed out that Texas law at the time of the alleged negligence (1968) prohibited abortion except to save the mother's life, and that the law of other jurisdictions could not be considered because “[T]he presumption is that foreign law is the same as that of Texas in the absence of pleading and proof of such law … There is no proof in this record of any foreign law.” Id. at 851. He then said that though Roe technically may mean that the Texas anti-abortion statutes existing in 1968 were not in fact law because they were unconstitutional, a reasonable physician should not be held at fault for assuming in 1968 that it would have been a felony for him to act in a way that could have been construed as aiding or abetting the procurement of an illegal abortion. Id. at 851-852. (The dissent's raising of this issue suggests that perhaps Roe had influenced the majority's reasoning.)

8 Id. at 847, 848. The physician, in his motion for summary judgment, had not challenged the parents’ allegations of negligence and proximate cause. Id. at 847. The court noted this, and also noted that it assumed “that Mrs. Jacobs could and would have terminated the pregnancy by lawful means, since that showing would be essential for a causal connection between defendant's failure to inform and plaintiff's damages.” Id. at 848.

9 Id. at 849.

10 Id. at 850.

11 Id.

12 While the cases discussed in this Article relate to physicians, any legal standards for informing a patient or client would presumably apply to nonphysician genetic counselors, a group which may be expected to grow as genetic information grows. (See Part III of this Article for a discussion of some recent advances in medical genetics.) Those standards are based upon the view that people have a legal right to self-determination:

Clearly, then, the requirement of adequate information should relate to what an average person in the patient's position would need to know in order to reach a well-considered decision; to permit the physician to substitute his judgment for the patient's on this point is, in effect, to nullify the patient's rights to self-determination.

COMMITTEE FOR THE STUDY OF INBORN ERRORS OF METABOLISM, DIVISION OF MEDICAL SCIENCES, ASSEMBLY OF LIFE SCIENCES, NATIONAL RESEARCH COUNCIL, NATIONAL ACADEMY OF SCIENCES, GENETIC SCREENING 183, 185 (1975). The Committee indicates that information should be withheld only if there is prior agreement between screener and patient that information be withheld under certain circumstances. Id. at 184. Conversely, practicing physicians or counselors commonly feel that they must withhold information for the “best interest” of the patient. One author who writes in the area of law and genetic counseling considers it apparent that “most counselors presently believe they have an unqualified right to withhold information from their patients.” Capron, Legal Rights and Moral Rights, in Ethical Issues in Human Genetics 221, 228 (1971).

13 Two post-Jacobs cases involving birth defects illustrate the vitality of the issues raised in Jacobs. In Howard v. Lecher, 386 N.Y.S.2d 460, _ N.E.2d _ (1976) the parents of a child who died from Tay-Sachs disease (a genetic disease) brought suit against their obstetrician for damages for their own emotional distress and for various expenses relating to the child's medical, hospital, nursing, and funeral expenses. The parents alleged diat the physician negligently failed to advise them of the availability of tests that could have revealed that they were carriers of the disease and that the infant had the disease, enabling them to decide to abort. The claim regarding emotional distress of the parents was appealed by the defendant physician. The Appellate Division of the New York Supreme Court upheld the physician on the ground that the child, not the parents, was the directly injured person. The court reasoned in support of its decision, that the damages sought were speculative and uncertain, and that recognition of plaintiffs’ claim would create an unwarranted extension of liability, placing an unreasonable burden on obstetricians and opening the way to fraudulent claims and increased litigation. 386 N.Y.S.2d at 461-63.

In Park v. Chessin, _ N.Y.S.2d _ , _ N.E.2d _ , 45 L.W. 2194 (September 16, 1976), the parents of an infant who died from a congenital polycystic kidney condition and other defects brought suit as administrators of the child's estate for its conscious suffering prior to its death, for the mother's pain and suffering, and for the father's loss of his wife's services, society, and companionship. The parents, who had had an earlier child who died of polycystic kidney disease, alleged that the physician had been negligent in failing to advise them of the reproductive risks and alternatives. The court upheld a cause of action for the infant's conscious suffering, saying that the injury to the infant was foreseeable even though the alleged tort took place before the child's conception. The court disagreed with the public policy rationale expressed in Howard, saying that the damages would not be unduly speculative, that courts should have no difficulty sorting out legitimate suits from fraudulent ones, and that physicians should be held responsible for their actions as much as members of other professions.

14 Such a case already had been brought prior to Jacobs; the child's claim was rejected. The case is Gleitman v. Cosgrove, 49 NJ. 22, 227 A.2d 689 (1967), noted at 46 TEX. L. REV. 1004 (1968), 10 So. TEX. L.J. 174 (1968), 46 No. CAR. L. REV. 205 (1967). The Jacobs court approved the Gleitman court's reasoning, but it is possible that the issue of suits by defective children is not dead. See the discussion of Gleitman beginning on page 227 of this Article.

15 In cases where the costs allegedly attributable to having a defective child are slight, it is unlikely that the incurring of the cost of a lawsuit would be worthwhile even if a cause of action existed.

16 The Jacobs court, 519 S.W.2d 846, 849, cites one such case, in which the parents sued for costs of rearing a normal child. The defendant doctor had allegedly failed to diagnose the woman's pregnancy in time for her to abort. Rieck v. Medical Protective Co., 64 Wis. 2d 514, 219 N.W.2d 242 (1974). The Wisconsin Supreme Court would not approve the cause of action, listing among its reasons that to do so would encourage fraudulent claims and create “a new category of surrogate parent,” with the doctor paying the bills and the parents getting the pleasure of the child. Id. at 244-45.

17 For a discussion of fetal sex testing, see p. 223 and notes 43-46 infra.

18 We have assumed, for purposes of this article, that it does. See note 12 supra. See also, regarding non-physicians, Tarasoff v. Regents of the University of California, 131 Cal. Rptr. 14, 551 P.2d 334 (1976), holding that if a psychotherapist determines, “or should have determined, that a patient poses a serious danger of violence to others [third parties], he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger,” at 131 Cal. Rptr. 25, 551 P.2d 365. Discharge of the duty of care, held the court, may require informing the third party of the risk or danger.

19 The Jacobs court speaks only of the duty of the doctor to inform his “patient,” identified by the court as Mrs. Jacobs. 519 S.W.2d at 848.

20 Part III of this Article describes such examinations.

21 The Jacobs court mentioned these questions but did not resolve them, saying that they were not before the court. 519 S.W.2d at 848.

22 519 S.W.2d at 850.

23 However, recent legislative reactions to the current medical malpractice “crisis” may lead to some curtailing of malpractice suits.

24 See Roe v. Wade, 410 U.S. 113, 95 S. Ct. 705, 35 L.Ed.2d 147 (1973) (abortion); Griswold v. Connecticut, 381 U.S. 479 (1965) (contraception); In re Sterilization of Moore, 289 N.C. 95, 221 S.E.2d 307 (1976) and Buck v. Bell, 274 U.S. 200, 47 S. Ct. 584, 71 L.Ed. 1000 (1927) (sterilization).

25 410 U.S. 113, 95 S. Ct. 705, 35 L.Ed.2d 147 (1973).

26 See description of their reasoning in Part I(A) of this Article.

27 V. APGAR & J. BECK, IS MY BABY ALL RIGHT? 381-82 (1972).

28 Id. at 381.

29 Id. at 380.

30 Id. at 383.

31 Id. at 384.

32 Id. at 381.

33 Id. at 107. In addition to those mentioned below, the suspect diseases include those caused by Coxsackie B, ECHO, and influenza viruses. Id. at 107.

34 Id. at 106. Cytomegalovirus may cause “as much, possibly more, damage to unborn infants” as rubella. Id. at 105. “Studies have shown that approximately 5 or 6% of pregnant women become infected with cytomegalovirus during pregnancy.” Id. at 106. See also Marx, , Cytomegalovirus: A Major Cause of Birth Defects, 190 SCIENCE 1184 (1975)Google Scholar.

35 When pregnant women are infected with the toxoplasma organism, which is carried in the digestive tract of cats, about 20% of the infants are “born with major defects, including mental retardation, hydrocephalus, epilepsy, eye damage and hearing loss. Some of these babies may also be premature.” Id. at 444.

36 Id. at 415. “Of all birth defects, congenital syphilis is one of the most serious … It's also the disorder that's increasing most rapidly in the United States.” Id. at 415. Unlike the viral diseases, syphilis can be cured with antibiotics. The risk to the fetus would depend upon when the mother was infected and how long the disease had gone untreated.

37 For a description of the fine technique of amniocentesis, which usually is performed at 14 to 16 weeks of gestation, see A. ETZIONI, GENETIC FIX 23 (1973). Milunsky, and Reilly, , in The “New” Genetics: Emerging Medicolegal Issues in the Prenatal Diagnosis of Hereditary Disorders, 1 AM. J . LAW & MED. 71, 76 (1975)Google Scholar, say that “[ajvailable legal precedent indicates that most courts would determine that amniocentesis is no longer experimental.“

38 Hobbins, and Mahoney, , Fetal Blood Drawing, THE LANCET, July 19, 1975, at 107CrossRefGoogle Scholar.

39 For elaboration see Chang, , Hobbins, , and Cividalli, , In Utero Diagnosis of Hemoglobinopathies, 290 NEW ENG. J. MED. 1067 (1974)Google Scholar; Hobbins and Mahoney, id. 1065; Hobbins, , Mahoney, , and Goldstein, , New Method of Intrauterine Evaluation by the Combined Use of Fetoscopy and Ultrasound, 118 AM. J. OBSTET. GYNEC. 1069 (1974)Google Scholar; Perry, Patrick, and Kinch, , Fetoscopy and Blood Sampling: A Percutaneous Approach, 119 AM. J. OBSTET. GYNEC. 539 (1974)Google Scholar; Valenti, , Endoamnioscopy and Fetal Biopsy: A New Technique, 114 AM. J. OBSTET. GYNEC. 561 (1973)Google Scholar; Valenti, , Antenatal Detection of Hemoglobinopathies, 115 AM. J . OBSTET. GYNEC. 851 (1973)Google Scholar; Scrimgeour, , Other Techniques for Antenatal Diagnosis, in ANTENATAL DIAGNOSIS OF GENETIC DISEASE 49 (Emery, A. E. H. ed., 1973)Google Scholar.

40 V. MCKUSICK, MENDELIAN INHERITANCE IN MAN (4th ed. 1975).

41 McKusick, , The Growth and Development of Human Genetics as a Clinical Discipline, 27 (part 30) AM. J. HUM. GENET. 261, 264 (Table I) (1975)Google Scholar.

42 Milunsky, , Medico-Legal Issues in Prenatal Genetic Diagnosis, in GENETICS AND THE LAW 53, 54 (1976)Google Scholar.

43 APGAR, supra note 27, at 466.

44 Id. at 79-80.

45 In some cases, however, producing a child of the “wrong” sex can have serious repercussions. “A woman writing from Texas pleaded with me to tell her if I knew a way to ensure a boy; she said she had had four girls and her husband threatened to leave her if she had another one.” A. ETZIONI, supra note 37, at 48.

48 Since the techniques which make prenatal determination of sex possible do involve an element of risk, physicians and genetic counselors often will not do sex determination tests where there is not some question of genetic defect. Currently, there is controversy over this stance, which has been called arbitrary in light of the legality of abortion. If in the future there is widespread use of tests to determine sex prenatally and if abortion is used to enable couples to have children of whatever sex they choose, the result, at first, may be a slight increase in males. Westoff and Rindfuss, 184 SCIENCE 633 (1974). For more on the implication of prenatal diagnosis of sex, see D. RORVIK, YOUR BABY's SEX: NOW YOU CAN CHOOSE (1970); Brodie, , The New Biology and the Prenatal Child, 9 J. FAMILY L. 391, 400–401 (1970)Google Scholar; Etzioni, , Sex Control, Science and Society, 161 SCIENCE 1107 (1968)Google Scholar.

47 A. ETZIONI, supra note 37, at 23.

48 Milunsky and Reilly, supra note 37, at 82. “Presently, all that can safely be said is that crimes of violence or of a sociopsychopathic nature occur with increasing frequency in XYY individuals. No accurate predictive statement can be offered for a particular fetus or child.” See aho Witkin et al, Criminality in XYY and XXY Men, 193 SCIENCE 547, 553-554 (1976):

[I]t is important to recall that the crime data we used were derived from records of individuals who were actually apprehended. People of lower intelligence may be less adept at escaping detection and so be likely to have a higher representation in a classificatory system based on registered crimes. The elevated crime rate found in our XYY group may therefore reflect a higher detection rate rather than simply a higher rate of commission of crimes.

The data from the documentary records we have examined speak on society's legitimate concern about aggression among XYY and XXY men. No evidence has been found that men with either of these sex chromosome complements are especially aggressive. Because such men do not appear to contribute particularly to society's problem with aggressive crimes, their identification would not serve to ameliorate this problem.

49 APGAR, supra note 27, a t 90.

50 Liability in genetic screening programs may arise from acts which occur outside the one-to-one relationship of the physician and patient; indeed, even though genetic screening programs will probably be conducted under the supervision of physicians the screenee may never have the personal contact with a physician.

Green, and Capron, , Issues of Law and Public Policy in Genetic Screening, in ETHICAL, SOCIAL AND LEGAL DIMENSIONS OF SCREENING FOR HUMAN GENETIC DISEASE 57, 58 (1974)Google Scholar.

51 It has been suggested that since medical technology now enables many people with genetic defects to survive to adulthood and to reproduce, our progress is polluting our genetic pool. It also is argued that by aborting defective fetuses who would not have reached reproductive age and substituting for them apparently normal ones who do reproduce but who pass on the hidden genes which they carry, the gene pool may further deteriorate. For a discussion of these issues see generally A. ETZIONI, GENETIC FIX (1973); L. LASAGNA, LIFE, DEATH AND THE DOCTOR 193 (1968); Research Group on Ethical, Social and Legal Issues in Genetic Counseling and Genetic Engineering, Institute of Society, Ethics and the Life Sciences, Ethical and Social Issues in Serening far Genetic Disease, 286 NEW ENG. J. MED. 1129 (1972)Google Scholar. Before the U.S. Supreme Court legalized abortion, one author expressed the fear that successful wrongful life suits would some day establish a kind of second class citizenship for a class of people whose defects would, in the opinion of the courts, justify a cause of action for wrongful life. Kass, , Implications of Prenatal Diagnosis for the Human Right to Life, in ETHICAL ISSUES IN HUMAN GENETICS 185, 189 (1971)Google Scholar. Under Jacobs v. Theimer the question may come down to the practical consideration of which defects involve enough special financial expense to make the plaintiff view the financing of a lawsuit as a worthwhile venture.

52 N. BERRILL, THE PERSON IN THE WOMB 98, 106 (1968).

53 Milunsky and Reilly, supra note 37 at 75, call prenatal diagnosis “now an established part of the physician's armamentarium” and “such a major advance” that ignorance by the physician

cannot be condoned … . While an individual physician has a right to pursue his own religious or other dictates, he or she must refer patients who require procedures and studies alien to the physician's beliefs—such as amniocentesis and prenatal genetic studies—to physicians who are willing and competent to undertake such procedures… . The deliberate intent or carelessness of the physician manifest in his or her failure to inform such a patient that there is a need for amniocentesis and prenatal studies invites suit.

54 519 S.W.2d at 848-49.

55 However, in a statement later in the opinion, the court suggests that it may have wanted to avoid classifying Jocobs as a suit for wrongful birth or wrongful life. The statement is quoted and analyzed in Part IV infra.

Is there a distinction between suits for “wrongful birth” and “wrongful life“? Some commentators treat the torts of wrongful birth and wrongful life as one. See Annotation, “Tort Liability for Wrongfully Causing One to be Born,” 22 A.L.R. 3rd 1441 (1968). The Jacobs court also seems to treat the torts as one; if it does make a distinction, it does not explicitly state it. See 519 S.W.2d at 848-49.

Others say that a child sues for wrongful life, and parents sue for wrongful birth. See Note, 3 SETON HALL L. REV. 492, 493 (1962). Accord, 47 TUL. L. REV. 226 n.11 (1972); or that wrongful life involves suits where the child is defective and was born because of a post-conception tort which caused loss of the opportunity for an abortion, whereas wrongful birth involves suits where the child is normal and was born because of a tort that took place before conception which led to an undesired conception. Examples of alleged imperfect contraception and negligent performance of sterilization are cited in note 57, infra.

None of these distinctions is entirely satisfactory. In Zepeda v. Zepeda, 411 III. App.2d 240, 190 N.E.2d 849 (1963), for example, a child sued its father for allegedly misrepresenting his marriage intentions prior to intercourse with the mother; the child claimed to have been injured by being born into an existence tainted by bastardy. Zepeda is widely considered to be the first wrongful life case even though the alleged tort—misrepresentation—was alleged to have occurred before conception, which would make make the case one of wrongful birth in some people's views. There is at least one case, Doerr v. Villate, 74 111. App. 2d 332, 220 N.E.2d 767 (1966), which involves a physically and mentally retarded child but is nevertheless discussed as a case of wrongful birth because it involved an alleged sterilization failure. In Gleitman v. Cosgrove, 227 A.2d 689 (1967), Jacobs’ acknowledged precedent, 519 S.W.2d at 849, which is discussed in Part IV (B) infra, it might reasonably be argued that actions for both wrongful birth and wrongful life were brought, since the parents brought suit on behalf of themselves as well on behalf of their child.

It is questionable whether attempts to distinguish between wrongful birth and wrongful life are fruitful; such distinctions may make an already complex area of the law even more complex. The Jacobs court may have been wise not to make such a distinction.

56 See 519 S.W.2d at 849-50.

57 49 N.J. 22, 227 A.2d 689 (1967), noted at 46 TEX. L. REV. 1004 (1968), 10 So. TEX. L.J. 174 (1968), 46 No. CAR. L. REV. 205 (1967).

The Jacobs court precedes its discussion of Gleitman with a listing, with little comment, of several wrongful birth-wrongful life cases. Except for the last case on the list, Terrell v. Garcia, 496 S.W.2d 124 (Tex. Civ. App. 1973, writ ref'd n.r.e.), the court makes no further explicit reference to these cases. Nevertheless, the following summaries of their holdings are offered as an aid in understanding some of the wrongful birth-wrongful life background to Jacobs. (See Part IV(C) infra for a summary of Terrell and its relevance to Jacobs.)

In Rieck v. Medical Protective Co., 64 Wis.2d 514, 219 N.W.2d 242 (1974), plaintiff parents sued a clinic and obstetrician for costs of rearing a normal child, alleging that defendant doctor failed to diagnose the woman's pregnancy in time for her to abort. The Wisconsin Supreme Court would not approve the cause of action, listing among its reasons that to do so would encourage fraudulent claims and would create “a new category of surrogate parent,” with the doctor paying the bills and the parents getting the pleasure of the child. Id. at 244-45. In Stewart v. Long Island College Hospital, 35 A.D.2d 531, 313 N.Y.S.2d 502 (1970), a pregnant woman who alleged she had had rubella was told by a doctor representing the defendant hospital that she did not need an abortion and should not seek one elsewhere. She was not told that the four-member hospital abortion committee was evenly split on the necessity and desirability of an abortion. Both the mother and the defective child sued the hospital for failure to perform an abortion. The court, citing Williams (see next paragraph of this note), Zepeda (see note 55 supra), and Gleitman, said that there was no cognizable cause of action, commenting that to create one was the business of the legislature, not the courts, and at any rate would raise difficult problems of measuring damages.

In Williams v. State, 18 N.Y.2d 481, 276 N.Y.S.2d 885, 223 N.E.2d 343 (1966), an infant sued the state of New York for alleged negligence in caring for her mentally deficient mother, an inmate of a state mental institution, resulting in a sexual attack on her mother leading to plaintiff infant's conception and illegitimate birth. The suit was dismissed by the court, which stated that, while adjudging damages of being born out of wedlock would not be impossible, it was not a justiciable wrong to be born to one set of parents rather than another, or in one circumstance rather than another.

In Aronoff v. Snider, 292 So. 2d 418 (Fla. App. 1974), it was alleged that an infant was born to plaintiff parents after the husband had undergone a vasectomy operation. The parents and the infant's three siblings brought suit in a wrongful birth action. The appeals court ruled that the siblings, who alleged that due to the birth their share of love, care, and economic benefits had been reduced from one-third to one-fourth, did not state a recognized cause of action and dismissed the complaint as to them.

In Troppi v. Scarf, 31 Mich. App. 240, 187 N.W.2d 511 (1971), it was alleged that a woman had conceived and delivered a healthy, but unwanted, eighth child after a pharmacist had negligently dispensed tranquilizers rather than the contraceptive pills prescribed for her. Suit was brought by both parents against the pharmacist for medical and hospital expenses, for the mother's lost wages, for costs of rearing the child, and for pain and anxiety relating to pregnancy and childbirth. The court allowed the suit, and held that if the plaintiffs proved their case, the jury could weigh all the effects, both positive and negative, of having an unwanted, though normal, child, and could based the damages on how these effects balanced out. The court stressed that “the element of uncertainty in the net recovery does not render the damages unduly speculative.” Id. at 521.

In Ziemba v. Sternberg, 45 A.D.2d 230, 357 N.Y.S.2d 265 (1974), plaintiff woman alleged that she had advised her physician, the defendant, that she did not wish to have children, and had sought contraceptive medication, which her physician prescribed; that she had followed the prescription, but, fearing she was pregnant, had sought, and received, an examination by defendant doctor, who advised her that she was not pregnant; and that another physician had diagnosed her pregnancy—by then advanced to four and one-half months—when it was medically inadvisable to seek an abortion. Plaintiff sued to recover damages for emotional pain and suffering and mental anguish, loss of consortium, educational and medical expenses of the child, and loss of wages; the father sued for medical expenses, loss of consortium and services of his wife, and costs of raising the child. The court, distinguishing the case from Stewart, supra, in that after Roe abortions were now a legal alternative, held that if defendant doctor had failed to diagnose pregnancy within a reasonable time to allow termination of pregnancy, the complaint alleging malpractice was sufficient and proper.

In Jackson v. Anderson, 230 So.2d 503 (Fla. App. 1970), plaintiff mother alleged that after a difficult third pregnancy and delivery, she underwent a sterilization operation recommended and performed by defendant physician, and later became pregnant. She delivered, with no difficulties, a normal infant. The mother sued the physician for breach of express warranty and negligence. The court reversed dismissal of the action by the lower court, and, citing Custodio v. Bauer (see following paragraph in this note), stated that a cause of action would lie and that the jury could evaluate and adjudge damages. The physician had argued that the normal birth of a healthy child precluded recovery, for public policy reasons.

Custodio v. Bauer, 251 Cal. App. 2d 303, 59 Cal. Rptr. 463, 27 A.L.R.3d 884 (1967), was an action in which a couple, claiming negligence, misrepresentation, and breach of contract, sued two physicians for allegedly negligently performing a sterilization operation, resulting in the birth of a normal child (the couple's tenth). The court held that a cause of action had been stated for each theory. With regard to the damages question, the court held that if the parents could prove negligence and proximate cause, they should be able to recover at least for the outlay of the operation, and also for any physical complications and mental, physical, and nervous pain and suffering which the operation was intended to prevent, such as the economic harm of spreading “[mother's] society, comfort, protection and support over a larger group… . [if] this change in the family status can be measured economically.” 59 Cal. Rptr. at 476. Damages, said the court, should be those necessary to compensate the plaintiffs for the detriment caused by the tort.

In its opinion, the Custodio court cited Doerr v. Villate, 74 111. App. 2d 332, 220 N.E.2d 767 (1966), which involved two statute of limitations questions in a case relating to the alleged birth, after a sterilization operation, of a mentally retarded and physically deformed child to a couple who already had two retarded children. Said the Custodio court of the Doerr case, “It does demonstrate that the birth of a child may be something less than a ‘blessed event.’ “ 59 Cal. Rptr. 473. The Custodio court apparendy decided to apply this concept to the normal, but unwanted child in the case with which it was faced. The court stressed that considerations had changed since the days when a child was invariably a blessing:

With fears being echoed that Malthus was indeed right, there is some trend of change in social ethics with respect to the family establishment. City, state, and federal agencies have instituted programs for dispensing of contraceptive information with a view toward economic betterment of segments of the population. Id. at 477.

58 519 S.W.2d at 849.

59 227 A.2d at 690.

60 Id. at 690.

61 Id. at 6 9 1 .

62 Id. at 690.

63 See id. at 693. The court said, ”… the right [to] life is inalienable in our society.” Id. It would not acknowledge that sometimes nonexistence might be preferable to existence; it would not tacitly sanction abortion. Though the court was ostensibly operating on the premise that Mrs. Gleitman could have obtained a legal abortion, see id. at 691, its antiabortion stance was tantamount to regarding abortion as illegal. Some of the case note writers after Gleitman perceived the paradox in the court's assuming that a legal abortion should have been obtained and, in the same breath, declaring abortion to be against social policy. One note writer, for example, discussed the legal status of abortion as central to the question of whether the parents’ rights were invaded. See Note, Gleitman v. Cosgrove, 10 So. TEX. L.J. 174, 178 (1968). Another note writer said:

Only when a eugenic abortion is illegal could the court's public policy argument properly be made.

Established social policy dictates a refusal to recognize a legal interest in the infant and justified denial of recovery in the infant's action. But a legally recognized interest in the parents is possible. This interest, however, can be recognized or rejected only by deciding the legality of eugenic abortion.

Note, Gleitman v. Cosgrove, 46 TEX. L. REV. 1004, 1008 (1968).

The conflict among court members in their attitudes toward abortion, which in turn is reflected in their sometimes lengthy interpretations of New Jersey law, is vividly illustrated by a comparison of the concurring and dissenting opinions. See 227 A.2d at 694-712.

64 410 U.S. 113, 95 S. Ct. 705, 35 L.Ed.2d 147 (1973).

65 227 A.2d at 692-93.

66 Tedeschi, On Tort Liability for “Wrongful Life,” 1 ISRAEL L. REV. 513 (1966).

67 227 A.2d at 692. Stewart v. Long Island Hospital, 313 N.Y.S.2d at 44 also relies on this single writer. The Stewart holding is summarized in note 57 supra.

68 41 111. App. 2d 240, 190 N.E.2d 849 (1963).

69 190 N.E.2d at 8 5 1 .

70 Id.

71 Id. at 855.

72 Id. at 855, 859.

73 Id. at 859.

74 Tedeschi, supra note 66, at 529.

75 Id.

76 Id. at 530.

77 Id. at 533.

78 In strictly mathematical terms, it is quite simple to compare a negative value with zero, and also a positive value with zero. The latter comparison might arise if a normal fetus were aborted (no life at all) after negligent misdiagnosis of fetal abnormalities which could have resulted in a normal baby.

It is beyond the scope of this Article to attempt a criticism of Tedeschi's lengthy metaphysics. Other writers have discussed the matter. See, e.g., A Cause of Action for “Wrongful Life,” 55 MINN. L. REV. 58, 63-67 (1970), and Kilbrandon, The Comparative Law of Genetic Counseling, in ETHICAL ISSUES IN HUMAN GENETICS 245, 247-51 (1973).

79 227 A.2d at 692.

80 Id.

81 Id. at 690.

82 Id.

83 Id. at 692.

84 Id. at 704. Justice Jacobs goes on to quote the U.S. Supreme Court in Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563 (1930):

Where the tort itself of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amends for his acts. In such case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate.

85 227 A.2d at 704.

88 Id.

87 The total costs of rearing and caring for a defective child cannot be estimated without reference to the individual involved. For extensive references to estimating of the financial burden of rearing a normal child—“the bottom line” for cost of a child with defects—see Note, Recovery of Child Support for Wrongful Birth, 47 TUL. L. REV. 225, 227 n.9 (1972).

88 It is questionable whether, in every case, a “rubella child” would be a source of happiness to its parents. Some of the rubella babies had not only mental retardation but also blindness and deafness in varying degrees, as well as other physical handicaps. V. APGAR & J. BECK, IS My BABY ALL RIGHT? 384 (1972).

89 519 S.W.2d at 849.

90 Id. at 849. Justice Weintraub's phrase (in his Gleitman dissent) was: ”… the intangible pluses and minuses in a parent-child relationship.” Justice Weintraub concluded that the parents had a right to seek an evaluation of intangible damages. 227 A.2d at 712. The Jacobs court clearly rejects that position.

91 519 S.W.2d at 849.

92 Id.

93 The Jacobs court here may have been concerned as much with the deterrence of physician negligence as with providing compensation for injured parties. Its language is mindful of Justice Jacobs’ dissenting statement in Gleitman that in declining to recognize a cause of action in that case, the majority “permits a wrong with serious consequential injury to go wholly unredressed. That provides no deterrent to professional irresponsibility… .” 227 A.2d at 703. Similarly, Justice Weintraub in Gleitman urged that a cause of action be recognized for the parents “if only to reinforce the duty of due care.” Id. at 712.

The Jacobs court seems to have been operating with a view of damages based on what the court in Troppi referred to as “settled common law principles.” Troppi v. Scarf, 187 N.W.2d 511, 513 (Troppi is summarized in note 57, supra). The reasoning goes like this: (1) there was a breach of duty; (2) the breach caused the injury; (3) as a result the plaintiffs incurred expenses they otherwise would not have had; and (4) therefore, the defendant must be held liable. For a discussion of this theory of damages and a conflicting theory in the context of wrongful birth, see Note, A Significant Development: Troppi v. Scarf, 52 B.U. L. Rev. 189, 190 (1972).

94 519 S.W.2d at 849.

95 Id.

96 496 S.W.2d 124 (Tex. Civ. App. 1973, writ refd n.r.e.).

97 Id. at 128. If the Texas Supreme Court chooses to alter its stance in the future, its script is already written in a spirited dissent in which Judge Cadena expressed his feeling that, “Neither the majority opinion in this case nor the opinion of the Eastland court in [Hays] attempts to articulate the social policy which is being furthered by assuring doctors that they may without fear of incurring liability, negligently perform sterilization operations.” Id. He challenged the majority's “price tag on a child's smile” rhetoric by pointing out what both the Gleitman court and the Jacobs court chose to ignore—that such intangibles commonly are reduced to a price in actions for wrongful death of a child, for example, or for loss of consortium in alienation of affection. Id. at 129. In Judge Cadena's opinion, both the Eastland and the San Antonio courts had asked the wrong question, Judge Cadena said. The issue was not who would pay for the joy of a child, but who would be responsible for the consequences of negligence. Id. Using stronger language than either Custodio or Troppi, he concluded that, “The birth of … [an unwanted] child may be a catastrophe not only for the parents and the child itself, but also for previously born siblings.” Id. at 131.

For cases from other jurisdictions acknowledging that the birth of even a “normal” child may be less than a blessing, and reaching a result opposite to Terrell, see Troppi v. Scarf and Custodio v. Bauer, cited and summarized in note 57 supra.

98 519 S.W.2d at 849-50.

99 488 S.W.2d 412 (Tex. 1973).

100 Id. at 413.

101 477 S.W.2d 402, 406 (Tex. 1972).

102 488 S.W.2d 412, 413 (Tex. 1973).

103 519 S.W.2d at 849-50.

104 Tedeschi, supra note 66.

105 This “defects added on” approach is perhaps not totally illogical. A fetus infected with a rubella virus was presumably a normal embryo with the defects added later. In more typical personal injury cases, courts assess damages for “defects added on” (injuries) without difficulty: they compare the injured person with a hypothetical person made whole again and calculate the remedies based on medical costs, pain and suffering, and loss of past, present, and future earnings. Taken into consideration are the ability to earn, the potential for income growth, cost of living increases, and life expectancy tables. See, e.g., Ratner v. Arrington, 111 So.2d 82 (Fla., 1959). These calculations are hardly more speculative for a fetus than for a child or adult.

A more thorny problem arises when the embryo did not begin existence with a normal constitution; this problem occurs in cases of genetic defects. The egg or sperm, or both, were defective so that the abnormality was present at the moment of conception. Clearly a wide spectrum of fact situations involving genetic defects can be envisioned: a gamete that is abnormal due to heredity; a gamete that is abnormal due to an environmental insult (such as radiation or a chemical mutagen); a “normal” fetus whose genetic abnormality develops shortly after birth (as with phenylketonuria or hemophilia), or a “normal” child whose genetic defect has an onset in adulthood (as with Huntington's chorea).

106 The “overwhelming burden” argument has been addressed in two recent cases involving birth defects. See note 13 supra.

107 Even if the original pregnancy was unplanned, a normal pregnancy could not be hypothesized, since the plaintiffs were not holding the defendant responsible for the original pregnancy itself.

The availability of techniques for detecting defects in a fetus (see Part III of this Article for a discussion of such techniques) and for aborting it takes the hypothesizing of this second, normal fetus out of the abstract. Views on performing prenatal studies differ:

Today, most physicians require both that the couple be willing or, more precisely, desirous of terminating the pregnancy by aborting the abnormal fetus and that the obstetrician be willing and able to do so [before the physician will agree to perform prenatal genetic studies]… . The function of preventing the birth of a defective individual becomes secondary to the function of insuring the birth of a normal one. In most instances in which prenatal diagnosis is carried out on a prospective basis, it is expected that the goal of the parents is to have normal children, even if several pregnancies are required.

Epstein, Medical Genetics: Recent Advances with Legal Implications, 21 HASTINGS L. J. 35, 43-44 (1969) (emphasis added).

For a contemporary position opposing the refusal to perform prenatal genetic studies except where abortion is contemplated, see Milunsky and Reilly, The “New” Genetics: Emerging Medicolegal Issues in the Prenatal Diagnosis of Hereditary Disorders, 1 AM. J. LAW & MED. 71, 79 (1975).

108 On this issue, Justice Weintraub warned in his partial dissent to Gleitman:

We cannot go on the hypothesis that the mother would have had the abortion and thereafter conceived and delivered a healthy child… . the damages are those suffered with respect to this defective child.

227 A.2d at 712.

It should also be noted that had the mother aborted and then had a healthy child, that healthy child would not only have created costs for the parents, but also brought them benefits.

109 496 S.W.2d 124 (Tex. Civ. App. 1973, writ ref d n.r.e.). For cases contra, see note 57 supra, summarizing Custodio v. Bauer and Troppi v. Scarf.

110 See Troppi, Ziemba, Jackson, and Custodio, supra note 57.

111 519 S.W.2d at 848-49.

112 Id. at 849.

113 For a brief discussion of this point, see page 226 and note 55 supra. Note 55 supra discusses the question of whether “wrongful birth” and “wrongful life” are the same or different.

114 519 S.W.2d at 849.

115 Id.

116 Id.