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Current & Recent Research at Penn Law

File: [View Document]
Author: Sawicki, Nadia N.
Citation: Wrongful Pregnancy, Wrongful Life and Wrongful Birth, 51(3) Medical Trial Technique Q. 283 (2005).
Date Published: 2005
Date Posted: 07/11/2007
Subjects: Law and Health Sciences
Keywords: Biotechnology
Health Law and Policy
Torts
Women
Abstract:
In the generally consistent body of tort law concerning liability for medical negligence, a proverbial question mark lies at the intersection of the controversial areas of pregnancy, abortion, informed consent, and disability. The novel torts of wrongful birth and wrongful pregnancy have caused dramatic rifts in the concept of medical malpractice. They have also contorted states' laws in ways that initially seem inconsistent. Given the many similarities between actions for wrongful birth and wrongful pregnancy, it is difficult to understand how a state could permit one while denying the other. However, an analysis of the differences between the two claims and the underlying justifications behind state laws will reveal that such a position may in fact be consistent. Missouri, for example, has tailored its moral reasoning to the factual intricacies of such cases, and has succeeded in developing a coherent body of law. On the other hand, states like Pennsylvania and Georgia ground their differential treatment of wrongful birth and wrongful pregnancy in arguments too weak to support such a distinction. An analysis of the differences between wrongful birth and wrongful pregnancy claims will help make clear which states offer the most consistent justifications for their positions.