Wrongful birth lawsuits are wrongful

Wesley J. Smith Senior Fellow, The Discovery Institute
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First, it was promotion of “after-birth abortion.” Now, just as that hubbub dies down, a Portland jury has ruled that Kalanit Levy should never have been born. More precisely, the jury awarded $2.9 million to Kalanit’s parents for what is sometimes called “wrongful birth.”

Kalanit has Down syndrome, which was not detected by doctors during pre-natal testing. Deborah Levy testified that while she dearly loves her daughter, had she known the truth about her condition, she would have had an abortion. So, the doctors and hospital must now pay because their medical negligence permitted her to see the light of day.

Wrongful birth lawsuits are merely the newest front in the ongoing eugenic search-and-destroy mission aimed at wiping people with Down syndrome off the face of the earth. What a bitter irony. We live in a society in which the ethical commitment to universal human equality may be at an all-time high. Americans heartily cheer on the participants in the Special Olympics. The Americans with Disabilities Act enjoys widespread support. Yet, many support targeting fetuses with Down syndrome and other genetic conditions for elimination in the womb. Indeed, studies show that about 90% of fetuses testing positive for conditions such as Down syndrome or dwarfism are now aborted.

Those who make a different choice may face societal opprobrium. I am convinced, for example, that the birth of Trig Palin to Sarah and Todd Palin was a primary reason for the visceral hatred of the former Alaska governor by some on the far-left political flank. Thus, the popular leftist blog Wonkette toxically opined:

Today is the day we come together to celebrate the snowbilly grifter’s magical journey from Texas to Alaska to deliver to America the great gentleman scholar Trig Palin. …What’s he dreaming about? Nothing. He’s retarded.

Wonkette was far from alone in taking this bigoted tack. Even mainstream political types made hateful statements about the birth of Trig. Thus, after Palin was added to the Republican presidential ticket in 2008, South Carolina’s Democratic chairwoman Carol Fowler sniffed that Palin’s “primary qualification seems to be that she hasn’t had an abortion.” (Wonkette and Fowler later apologized.)

The efforts of many medical organizations to increase pre-natal testing for Down syndrome may not express the same kind of open hostility toward the genetically disabled — and indeed, such procedures can be very valuable to help parents prepare, as the Palins attested. But the ethical use of these tests may depend on the values of those “counseling” the parents about how to react to the results.

Too often, abortion is pushed as the preferred option. Indeed, after studies showed that many genetic counselors promoted the abortion of Down fetuses, the late Senator Edward Kennedy — cobalt blue politically — joined with the politically ruby red former Senator (and now Kansas Governor) Sam Brownback, to pass the  “Prenatally and Postnatally Diagnosed Condition Awareness Act.” The law, signed into law by President Bush in 2008, requires neutrality in pre-natal genetic counseling so as to help “parents and the public shift from viewing disability as simply a medical diagnosis and tragedy to a more enlarged view that encompasses the full potential of children with disabilities and the experience of parenting a child with a disability.”

On a macro level, wrongful birth could be analogized to a breach of warranty lawsuit, illustrating the extent to which reproduction has become a consumer activity. Thus, pre-implantation genetic diagnosis after IVF permits parents to select the genes they want in their children before embryos are placed in the womb — with the unwanted often becoming medical waste. Often PGD is applied to prevent the birth of a child with an inherited genetic disease. But it also has cosmetic and consumer applications. For example, embryo selection can be used to choose for sex, eye color and perhaps someday for traits such as intelligence and athletic ability.

We have such a split mind about procreation. On one hand, we believe parents have a fundamental right to have a child by any means necessary, and at the same time, if they change their minds, they can destroy gestating babies that are not wanted. Indeed, would-be parents routinely spend tens of thousands of dollars creating embryos through IVF. But, if too many embryos implant, they have “selective reduction” in which triplets may be “reduced” (a euphemism for abortion) to twins (in reality, triplets with a dead sibling).

A tragic situation in Florida in 2006 illustrates where we are. When a woman became pregnant with two IVF embryos and one tested as positive for Down syndrome, she obtained an abortion. But the abortionist “reduced” the “wrong” fetus. The woman then had a second abortion. Two minus two equals zero. (The doctor subsequently lost his medical license.)

The time has come to reverse course. We could begin with states prohibiting wrongful birth lawsuits as a matter of public policy. We may have a right to have a baby, but we don’t — or at least shouldn’t — have a right to the baby we want. Most importantly, none of us should ever be declared by a jury to be a wrongful life. May Kalanit never learn that her parents would have prevented her from ever being born.

Wesley J. Smith is a senior fellow at the Discovery Institute’s Center on Human Exceptionalism. He also consults with the Patients Rights Council and is a special consultant to the Center for Bioethics and Culture.