The Iowa Supreme Court ruled June 2 that parents may sue their doctors for “wrongful birth” if their child has the possibility of a defect, marking the first time that a personal injury claim for wrongful birth has been recognized in Iowa.
Divorced couple Jeremy and Pamela Plowman brought a medical negligence suit against Fort Community Hospital, the Radiology and Women’s Center, multiple doctors and Fort Madison Physicians and Surgeons in 2016, claiming that they had the right to know that their son had a slightly smaller head and a chance of being born with cerebral palsy. In a 6-1 decision, the Iowa Supreme Court ruled that the Plowmans have the right to sue the hospital and its employees for failing to provide sufficient evidence which would have led them to abort their baby.
Pamela Plowman’s 22-week ultrasound report noted that the baby’s head was “not well seen” and possibly small for his age. The doctor informed the parents that the boy’s head circumference was only “slightly” below normal, and the parents asked for no further tests. Only months after the baby was born did Pamela notice developmental retardation. The child is now five years old with cerebral palsy.
The justices on the case based their decision in part on Roe v. Wade which “established as a matter of federal constitutional law that a woman has a right to choose whether to terminate her pregnancy free from state interference before the fetus is viable.” They also cited the 2016 case of Whole Woman’s Health v. Hellerstedt, which struck down Texas laws regulating abortion clinics that imposed undue burdens on the women’s right to choose to terminate pregnancy.
Written by Justice Thomas Waterman, the majority ruling quotes a 1999 New Jersey SC case Canesi v. Wilson comparing informed consent and wrongful birth: “Informed consent and wrongful birth causes of action are similar in that both require the physician to disclose those medically accepted risks that a reasonably prudent patient in the plaintiff’s position would deem material to her decision [to abort].”
The court said that allowing wrongful birth claims will likely stigmatize the disabled community, but “that concern does not warrant closing the courthouse door to these parents.” The majority of judges agreed that wrongful birth lawsuits will “lead to more abortions” and “will increase the cost of prenatal care by encouraging physicians to practice defensive medicine,” but could not agree that these concerns warranted rejecting the parents’ claim.
However, wrongful birth suits may lead to an increase in fraudulent claims. The Missouri Supreme Court rejected wrongful birth lawsuits in its 1998 Wilson v. Kuenzi decision because “the right to recovery is based solely on the woman testifying, long after the fact and when it is in her financial interest to do so, that she would have chosen to abort if the physician had but told her” of the risk of genetic abnormality.
The dissenting Iowa Supreme Court Judge Edward Mansfield said that wrongful birth lawsuits lead to a “slippery slope,” are contrary to traditional common law, and go against long-standing Iowa statutes that “discourage, not encourage, abortions.”
“There are good public policy reasons not to recognize the claim,” Mansfield wrote, noting that Pamela Plowman declined her doctor’s offer of amniocentesis during a subsequent pregnancy.
Twenty-three states currently recognize wrongful birth lawsuits, while 12 states have laws banning these suits. Iowa’s Republican-controlled legislature can enact a ban if it disagrees with the court’s decision.
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