21 Million Dollars for Live Child

July 25, 2007 | 106 comments
By

A Florida jury awarded a couple 21 million dollars for bad advice they received from a geneticist (though under state law they may only receive $200,000). The couple’s first baby had severe disabilities but the geneticist told them they would not have future children with the same problem. But the odds were actually 1 in 4 and the couple’s second child was also born with the disability. The 21 million dollars is to compensate the couple for the harm of having to raise their medically-expensive child.

From one angle of view, this itself is disquieting. The harm the legal system is recognizing is not that their child was damaged by the gene doctor’s malpractice but that the child exists at all because of it. I am comfortable saying that sex outside marriage is wrong despite the fine bastards I know–though I don’t think the illegitimate child has suffered a legal harm–so if I thought it through I could probably get over any disquiet.

But the couple’s theory was not that if given proper advice they would have tried for adoption instead. The article is unclear, but it seems either that (1) the couple was already pregnant and claimed that if the doctor had properly advised them they would have tested their child and aborted it or (2) the couple was not already pregnant and, if properly advised, would have gotten pregnant with the intention of testing their child for disabilities and aborting it if disabled. The harm they suffered is that they weren’t able to abort their child. Even people who claim to believe that a child in the womb isn’t yet a child could be troubled by this. It would be the equivalent of a married man suing on the basis that someone kept him from getting a much better wife than the one he has.

I don’t think the couple comes off too well in this, but I understand what they’re doing. When you’re trying to take care of your kid, any port in the storm. But I cannot see why the state, through its legal system, is willing to recognize not having aborted your child as a legal harm that needs compensation. Many states do, though.

Hat tip: Leon Wolf.

106 Responses to 21 Million Dollars for Live Child

  1. SteveG on July 25, 2007 at 9:51 am

    As a medical student, we are constantly instructed on how to explain situations such as this to parents/patients. You have to explain the risks without scaring people, yet not providing false hope.

    The debate rages in terms of whether the parents were misled and are thus due compensatory damages, or are they looking for a selfish payday. Was this a multi-million dollar mistake? If so, I am due a lot of moolah for various mistakes my doctors, friends, and family have made over the years.

  2. John Mansfield on July 25, 2007 at 10:27 am

    The award against the geneticist seems reasonable to me. The article says “Kousseff, a specialist in genetic disorders, told them they should be able to have normal children in the future.” Yet it now seems to be established as a fact that the first child’s disability is due to a recessive gene carried by both parents. That’s the very information that it was his professional responsibility to provide the couple. Incorrect information led them to pursue a costly course, one they would not have taken had Kousseff not given them incorrect information. They were worse off for having received Kousseff’s advise then they would have been with no advise at all.

    Abortion is not an important factor here. The first child was born in 2002 and the second child is now a two-year-old. The incorrect diagnosis proceeded the second conception. This couple happens to be part of the vast faction that will abort the disabled. However, replace this particular couple with the staunchest right-to-life pair, and the result would have been the same: the birth, which with correct information would have been avoided, of a disabled child.

  3. Adam Greenwood on July 25, 2007 at 10:30 am

    I think its irrelevant, John M., that a pro-life couple might have avoided having children altogether. This couple did not intend to do that. They intended to conceive, test, and abort, which is not at all the same result.

  4. Ardis Parshall on July 25, 2007 at 10:31 am

    Adam, I’ve read enough of your posts and followed enough of your sideblog links to know that my response will put me squarely in your high-power rifle sights; nevertheless …

    Your take is one possible take, but I submit it is an unwarranted extremist take. So far as we can rely on a single AP report, the couple did not sue and the jury did not award because the couple had a live child. It’s not like they didn’t want a child and were somehow forced into having one against their will, as suggested by inflammatory terms like “wrongful birth” or that they weren’t “allowed” to abort their child. They wanted a baby, and the mother sought medical care during pregnancy.

    Their suit is because the doctor’s (apparent) incompetence prevented them from taking medically available and legally permissible steps for what they thought (mistaken though you and I think it to be) was in the best interests of their family. Although the result would be the polar opposite, this is no different from a couple seeking to know whether their child had a potential birth defect that could be treated in utero but if untreated would kill the child at birth.

    Over-the-top rhetoric does nothing to win support for a cause, at least from me.

  5. Kaimi Wenger on July 25, 2007 at 10:48 am

    Doesn’t a doctor have a professional obligation, regardless of the patient’s decision on what to do with the information?

    Let’s say I’m a doctor, and an unmarried patient comes to me and says, “please tell me about one effective method of birth control.” However, I disapprove of premarital sex. So I tell this patient, “eating a peanut butter sandwich before sex is an effective method of birth control.” Relying on my advice, that patient then becomes pregnant.

    Have I committed a wrong? Should it be compensable?

  6. Nick Literski on July 25, 2007 at 10:54 am

    Okay, I’ve read the article. The doctor misdiagnosed the couple’s first child’s genetic disorder, ending up telling them that a second child should be fine. The couple argues that had they received an accurate diagnosis, they would have terminated an already-existing pregnancy via abortion.

    It happens that I’ve done some work in the area of “wrongful pregnancy” a.k.a. “wrongful birth.” In my last year of law school, I helped with a case in which a doctor was completely incompetent in performing a tubal ligation The doctor evidently couldn’t tell his right from his left, and instead of tying the woman’s one working fallopian tube, he removed fragments of the other tube, which was already tied off due to a prior tubal pregnancy—a pregnancy resulted, with coincidental birth defects, resulting in huge expenses for life-saving medical procedures. Since I found this case interesting, I chose the topic for the large-scale legal research paper my school required prior to graduation.

    It turns out that the various states are quite divided on this issue. Forgive me for not remembering specific states eight years later, but I’ll summarize. Some states refuse to ever allow this kind of lawsuit, reasoning that the joy which parents experience as a result of raising a child will always outweigh any expense or other harm which the parents may have suffered as a result of the wrongful pregnancy. (My comment: What if their darling child grows up to be a serial killer? Did all that “joy” still outweigh the costs?) Some states (such as Illinois, where my above case took place) allow the lawsuit to proceed, but only allow plaintiffs to recover for actual medical expenses incurred. Some leave the door wide open for any recovery that would exist in any other tort suit. I do seem to recall some of the state supreme courts reasoning that allowing these cases “invites” abortion, but I’m afraid I couldn’t begin to tell you which states those were.

    I will say that I’m quite surprised at the amount of the verdict. In 1999, when I did my research and work on the subject, the winning cases never seemed to exceed six figures.

  7. Kaimi Wenger on July 25, 2007 at 10:55 am

    “It would be the equivalent of a married man suing on the basis that someone kept him from getting a much better wife than the one he has.”

    Actually, Adam, this may be a better analogy. Suppose I go the geneticist for testing, and I ask: Should I marry my then-girlfriend? Will we be able to have kids? The geneticist says everything is fine.

    In fact, due to a rare genetic combination, all of our children will die before birth. And this is due to a recessive gene carried by 1 in 20,000 of the population — including both me and my then-girlfriend. I’d be fine with 99% of possible marital combinations — but not this particular one.

    It’s true that, if the geneticist does his job right — and if having children is important to me — I’m likely to break up with my then-girlfriend. Would that act be wrong? And if I’m choose to act otherwise based on the geneticist’s bad advice, should I have legal recourse?

  8. Adam Greenwood on July 25, 2007 at 11:00 am

    What’s the objectionable rhetoric, A. Parshall? You disagree with my position, true, but you’re the one using terms like “extremist,” ‘high-power rifle sights,” “inflammatory,” and “over-the-top.” I never used the term “wrongful birth,” though that’s the standard term for these kinds of suits. I even expressed some of my real sympathy for the situation the couple is in.

    I disagree that abortion is just a “medically available and legally permissible step” or just a mistake, though mistakes are not usually legally compensable.

    Its possible to justify allowing abortion out of a respect for autonomy without saying that autonomy actually defines what’s valuable. Its possible to say, for instance, that society will not force you to carry a disabled child to full term but that society disagrees that you’re better off terminating the child. But that’s not what the state is doing here. The state is saying that the child’s continued existence is a harm because the couple claims they would have used their autonomy to terminate that existence. This is very much different from your “polar opposite” example because the couple would not be arguing that their child’s continued existence was a harm but that the harm was to let their child continue its existence in a less able form.

  9. Adam Greenwood on July 25, 2007 at 11:03 am

    Thanks for that information, Nick L. One implication of treating abortion as just another option is that in the tube-tying case you describe, the couple might be under a duty to mitigate their “damages” by seeking an abortion themselves. Or an adoption.

  10. Adam Greenwood on July 25, 2007 at 11:06 am

    Kaimi W., #5:
    Doctors do have a duty to tell the truth; what we’re discussing here is whether society should recognize the existence of a child as a legally compensable harm. But if you take autonomy as the key value in the abortion debate, you probably would want to penalize doctors in some way for deliberately providing false advice, even though I don’t think autonomy requires recognizing wrongful birth suits based on mistaken advice, for the reasons I express in #8.

  11. Kathryn Lynard Soper on July 25, 2007 at 11:08 am

    I am concerned about the mounting pressure on doctors to cover their butts by presenting worst-case scenarios when it comes to prenatal diagnoses. I’m planning a post about how this climate is causing such controversy regarding the new Down syndrome testing, and I don’t want to thread-jack, but I can’t help but wonder–what if failing to thoroughly cover the potential horrors of a congenital condition could be considered incompetence? Here the issue is a failure of a different sort, much more cut-and-dry. But the larger issue is a slippery slope, imo.

  12. Nick Literski on July 25, 2007 at 11:12 am

    #9 Adam:
    You’re right, in theory. I have no doubt that the defense lawyers would make that argument. Most courts would limit the duty to mitigate damages to “reasonable” actions, however. Can you just imagine the firestorm that would ensue, if a court actually ruled that the parents couldn’t recover, because they “failed to mitigate their damages” by not seeking an abortion? No matter how pro-choice a judge is, I don’t think s/he would have the guts to toss that grenade.

  13. Adam Greenwood on July 25, 2007 at 11:13 am

    Kaimi W., #7:

    Great hypothetical. Certainly no one would want to illegalize breaking up with your girlfriend but its kind of dubious to marry someone and then sue saying that the marriage was a compensable harm.

    It might be even more analagous if we were talking about running genetic screens on your girlfriend to see if she was going to develop any syndromes later in life. The test mistakenly says she won’t, you marry her, and then she becomes progressively disabled. Can you sue on the basis that you wouldn’t have married this woman had you known and that your current marriage is a legally compensable harm to you? My attitude towards this question is pretty similar to the attitude I think pro-choicers should have to these kinds of wrongful birth suits. Though I’m not certain, I think its probably wrong to do these kinds of tests before getting married; on the other hand I think I probably don’t want the state making it illegal; but on the gripping hand if someone does do the tests, the tests are mistaken, and they get married, I don’t think they should be able to claim that their marriage is a harm that they need to be paid to compensate for.

  14. Nick Literski on July 25, 2007 at 11:16 am

    I forgot to mention that one piece of information is missing here. Medical malpractice suits are very difficult for plaintiffs to win at trial. “Failure to diagnose” is the toughest kind of medical malpractice for a plaintiff to win at trial. There must have been some pretty dramatic incompetence on the part of this doctor.

  15. Adam Greenwood on July 25, 2007 at 11:19 am

    KLS, do your post. In most medical malpractice situations where the patient has to make a decision, the doctor is required not just to inform the patient but to make them “fully informed.” What that would entail with babies with Down syndrome I don’t know. It depends on the magnitude of the worst-case scenarios and the probability that they will happen. The more reasonable the probability, or the worse the worst-case scenario, the more likely that in ‘wrongful birth’ states the doctor is legally responsible to tell the patient this so they can make a fully informed choice on abortion or not.

  16. marcus on July 25, 2007 at 11:19 am

    I don’t think the harm the couple incurred was having the child. They could still have claimed negligence if they had gone ahead with another pregnancy, done the test, and aborted. Their damages would have been limited to the cost of the test and the abortion, and probably pain and suffering or mental anguish, or whatever it’s called.

    Also, without reading through the case it’s difficult to know the comment about being able to test and abort was merely editorial, or part of the couple’s plans all along. There’s nothing that indicates the couple had ruled out adopting or some other method of conception.

  17. Adam Greenwood on July 25, 2007 at 11:22 am

    Nick L.,
    I disagree that medical malpractice is so hard to come by, but then I am a defense lawyer. I agree with your #12, though as a lawyer I would advise my clients against making a failure-to-abort mitigation argument, since it would make us look like slithering filth. I think this example shows that treating abortion as just another medical option for malpractice purposes is probably a bad idea.

  18. Adam Greenwood on July 25, 2007 at 11:30 am

    They could still have claimed negligence if they had gone ahead with another pregnancy, done the test, and aborted.

    No. From what I read, that would have been the couple’s plan if the gene doctor had given them the right advice. You are right, though, that there’s at least some possibility the article might be making inferences about the couple’s plan that aren’t supported by what actually happened in trial. In any case, I’m not so much interested in condemning this specific couple as I am in discussing
    ‘wrongful birth’ and comparable hypothetical claims like ‘wrongful marriage.’

    Ooh, another interesting hypothetical: What about “wrongful fidelity’? A man consults with a lawyer who mistakenly advises him that in this jurisdiction adultery is criminal. The man refrains from committing adultery. He later discovers that the advice was wrong. Should the man be able to sue the lawyer for the loss of satisfaction he incurred?

  19. Ardis Parshall on July 25, 2007 at 11:35 am

    Adam, the AP article’s headline (but not you, and not anyone quoted in the article) used the term “wrongful birth.”

    We are agreed that abortion is not JUST “a medically available and legally permissible step.” I think abortion is virtually always the wrong thing to do, and that there are spiritual and moral consequences making it not “just” a medical/legal choice. But it is both available and permissible, whether we approve of it or not.

    My objection is to characterizing the decision as the state’s objection to the child’s continuing existence. The state doesn’t object to the child’s existence; the state objects to the doctor’s negligence, which cut off the parents’ right to make a legal choice.

    Anti-Mormon bigots are always latching on to some bit of Mormon doctrine or folklore and claiming that “because the Mormons believe X it follows that Y” — with Y being something that none of us would recognize as Mormonism. I think it’s just as illogical and wrong and over the top to say that because a jury decided X (the doctor’s negligence put an excessive burden on the parents for medical expenses) it follows that Y (the state objects to the child’s continued existence).

  20. Nick Literski on July 25, 2007 at 11:43 am

    #17 Adam:
    Wow…I love that phrase, “slithering filth!” :-)

  21. John Mansfield on July 25, 2007 at 11:49 am

    Brother Greenwood, the geneticist delivered shoddy goods. What would you have done about that?

  22. Adam Greenwood on July 25, 2007 at 11:51 am

    The state doesn’t object to the child’s existence; the state objects to the doctor’s negligence, which cut off the parents’ right to make a legal choice.

    The state is not objecting to the doctor’s negligence in itself. There is no statute, for example, that says that a doctor must pay $21 million bucks if he gives you the wrong advice. In Florida, as in most states, if a doctor gives you bad advice but you don’t suffer any harm, you don’t have a case. So inherent in what the state is doing is the assumption that a child is a harm if the parents wouldn’t have wanted the child.

    it’s just as illogical and wrong and over the top to say that because a jury decided X (the doctor’s negligence put an excessive burden on the parents for medical expenses) it follows that Y (the state objects to the child’s continued existence).

    The only way the couple could have avoided the medical expenses under their theory of the case was to have aborted the child. X does entail Y. The state cannot say, ‘doctor, you must pay this couple for the costs of this child’s existence’ without also saying ‘parents, we are sorry that your child is alive.’ My objections to anti-Mormons are either that they are wrong that X entails Y or that they assert that if we believe X, and Y follows from X, we necessarily believe Y, which ignores our revelatory model wherein putting the question of Y to God may result in a revision of X just as much as it may result in the adoption of Y.

    But it is both available and permissible, whether we approve of it or not.

    I am aware. I am arguing that just because the state chooses not to illegalize a choice does not entail that it has to see all the consequences of the choice, if not fully informed, as a legally cognizable harm. That’s the point of my wrongful marriage and wrongful fidelity examples, which both involve available and permissible choices.

  23. Adam Greenwood on July 25, 2007 at 11:57 am

    Brother Greenwood, the geneticist delivered shoddy goods. What would you have done about that?

    Under our current system, doctors can deliver shoddy goods all the time and there’s no real recourse until some legally cognizable and provable harm results, which is kind of unsatisfactory. Here, I suppose the couple should be able to recover the costs of his services, nominal damages, punitive damages, possibly, and whatever extra expenses they would have incurred in having the child by not knowing in advance that it was disabled. The couple could also bring proceedings against his license. Possibly we need some avenue to penalize doctors for negligence even if no serious legal harm results, though punitive damages is usually felt to fulfill that role.

  24. Kaimi Wenger on July 25, 2007 at 12:27 pm

    Adam,

    You write: ” The state cannot say, ‘doctor, you must pay this couple for the costs of this child’s existence’ without also saying ‘parents, we are sorry that your child is alive.’ ”

    I would disagree. We can object to the process, without obecting to all of the results of that process.

    Suppose that a woman is raped, and conceives a child by that rape, and keeps the child. Can’t she sue her attacker for everything he’s worth, for pain and anguish suffered and for support for that child? Her suit against the attacker should not be viewed as a criticism of the existence of the child. She can love the child like any other — she can be at peace with the ultimate existence of the child, that is — but at the same time be outraged at the process by which those wheels were put in motion, without her consent, and thus seek to receive justice for that harm done.

  25. Adam Greenwood on July 25, 2007 at 12:34 pm

    Kaimi W.,

    She can sue for the pain and suffering and the rape as ‘damages.’ She can also sue for support, but not because the child is a harm or its existence a damage but because the rapist is the child’s father. Child support actions are not damages actions and fathers must support their children whether the conception was wrongful or not. Child support isn’t calibrated on how much the mother or the child is injured by existing but by what the child needs and what the father’s means are. If child support were a tort, then the father would not have to pay for college education and would be able to deduct the emotional benefits the mother received from her child and would be able to claim failure to mitigate if the mother didn’t abort the child.

    I don’t see how to distinguish your rationale from the ‘wrongful marriage’ or ‘wrongful fidelity’ hypos.

  26. ronito on July 25, 2007 at 12:35 pm

    21 MILLION dollars? Good gosh there’s people with the wrong leg cut off that recieved a pittance compared to that.

  27. Kathryn Lynard Soper on July 25, 2007 at 12:48 pm

    “this tragedy was so preventable” (so says one of the prosecutors)

    What was the tragedy?

  28. Matt Evans on July 25, 2007 at 1:15 pm

    Adam is right that the issue is the state’s recognizing the disabled child’s existence as a legal harm. (No one argues that the geneticist caused the disability; they argue that had he done his job correctly, the disabled child would not exist.) I fully agree that only a slitheringly filthy society thinks this way.

  29. John Mansfield on July 25, 2007 at 1:25 pm

    The preventable tragedy was the reproductive mating of a couple each bearing a defective DHCR7 gene. (chromosome 11, base pairs 70,823,107 through 70,837,046)

    I recall a couple I home taught. They produced no children because the wife carried a genetic inheritance that had killed all of her brothers in childhood and would kill any son she bore. There was nothing a bit “slithering filthy” about her.

  30. Steve Evans on July 25, 2007 at 1:30 pm

    Hey, has anyone actually read the decision or the pleadings? Seems to me this post is based more on redstate.com’s reading of an AP article than direct (or even indirect) knowledge of what happened.

    You may now resume your predetermined conversations.

  31. Kaimi Wenger on July 25, 2007 at 1:45 pm

    Steve,

    Reading the decision or pleadings is a direct violation of the Model Blogging Code, section 3.2. (See also section 3.3, “actually reading the book in question,” and 3.5, “actually reading your opponent’s comment.”)

    By the way, I didn’t read your comment.

  32. John Mansfield on July 25, 2007 at 1:52 pm

    Here are a couple of more detailed reports from the Tampa Tribune: first, second.

  33. Matt Evans on July 25, 2007 at 1:57 pm

    “The preventable tragedy was the reproductive mating of a couple each bearing a defective DHCR7 gene.”

    A “reproductive mating” means a child. That is why the legal harm is the child’s existence. If all the facts of this case were identical, but the husband had unknowingly become infertile, there would be no legal claim even though the doctor gave the same wrong information. The legal claim is founded solely in the existence of the disabled child. The causatory claim is, “But for the defendant’s error, this disabled child would not exist.” Again, no one believes the defendant caused the disability, the defendant is blamed for causing the disabled child’s existence. That is why so many people find wrongful birth arguments morally offensive.

    I fully agree it is not immoral for people with severe genetic disorders to decide not to have children.

  34. Ray on July 25, 2007 at 2:02 pm

    Kaimi, #31 – Brilliant, especially 3.5. (Sorry, I will repent for reading your comment.)

  35. Nick Literski on July 25, 2007 at 2:21 pm

    Matt, that is one way of looking at it, and some state supreme courts agree with you. Another way of looking at it is that but for the physician’s negligence, (a) the expense and labor of raising a child, particularly a special-needs child, would not have fallen upon the parents, and (b) this child would not have been forced to live a life with the burden of a serious disability.

    I can almost guarantee you the parents would recoil at the idea that they are protesting their child’s existence, and I think it’s rather harsh to assume they are doing so.

  36. John Mansfield on July 25, 2007 at 2:32 pm

    The geneticist put his professional stamp on a bad set of plans. He has some responsibility for the resulting structure, even though its construction was the work of others.

  37. Adam Greenwood on July 25, 2007 at 2:33 pm

    “The preventable tragedy was the reproductive mating of a couple each bearing a defective DHCR7 gene.”

    Actually, no. The couple indicated that if the geneticist had done his job, they still would have engaged in, ah, reproductive mating, but would have taken care to do testing so they could abort the child if it had the wrong genes. The “preventable tragedy” was that the couple brought their disabled offspring to full-term where they were no longer legally able to kill it.

    (b) this child would not have been forced to live a life with the burden of a serious disability.

    This child would not be alive at all. The claim is not that various preventative techniques could have alleviated the child’s condition. The claim is that the child could have been terminated. The child’s existence is very much what is at issue.

  38. Adam Greenwood on July 25, 2007 at 2:35 pm

    I confess that I’ve read the original post and even some of the comments, but I read them hurriedly and with a strong cognitive bias. Does this get me off?

  39. Nick Literski on July 25, 2007 at 2:37 pm

    Thanks, John, for the links to newspaper stories. They introduce some interesting wrinkles. First, the defendant is a government unit, so Florida law limits their liability exposure to $200,000, unless the state legislature actually approves a larger payout to follow the jury’s finding. A republican legislator is already saying it’s a *political* issue (rather than a liability and justice issue), due to the spectre of abortion.

    Second, this doctor wasn’t just incompetent. If the newspaper articles are accurate, his conduct actually raises a suspicion of intentional conduct. The man had seen ten other cases with this same genetic defect, and had actually published on the subject. Another doctor said the proper diagnosis should have “hit him over the head.” While you’d have a terrible time proving it in court, I can’t help but suspect that the doctor knew exactly what the condition was, but intentionally withheld that information from the parents in order to prevent a potential abortion of the existing second pregnancy. The doctor certainly has the right to strongly oppose abortion, but if he hid this condition from the parents in order to prevent them from acting against his beliefs, his behavior is shocking and offensive.

  40. Adam Greenwood on July 25, 2007 at 2:43 pm

    Not nearly as shocking and offensive as abortion, but yes, I think the doctor had the obligation to be honest with the couple even if by being dishonest he could prevent what he reasonably could understand to be a murder. He could always sound them out about abortion at the beginning and refer them to another gene doctor if he had qualms about their intentions.

    Of course we don’t know if the doctor acted intentionally and that wasn’t the legal basis for the 21 million dollar award.

  41. Nick Literski on July 25, 2007 at 2:49 pm

    Adam, I actually appreciate your “strong cognitive bias.” You’re not being insulting to anyone. Rather, you’re putting forth a legitimate viewpoint, whether everyone agrees or not.

    Regarding your comment in #37, I still don’t think the child’s *existence* is the issue. Look at it this way. Suppose a man and his wife knew that they were both carriers of a recessive genetic disorder, and that there was a 25% chance that any children they had would be severely disabled, unable to ever communicate, let alone care for themselves (as is the case in the lawsuit here). Now, suppose that this couple decided to take that chance, and have a child. Suppose the child was born with the genetic defect. I can’t imagine ANY couple in such a situation would manage not to feel incredible guilt. Their feelings of guilt wouldn’t be for producing a child, though. Their feelings of guilt would be for “inflicting” such suffering and disability ON a child. In this case, the doctor’s negligence (or intentional misconduct—I can’t avoid that suspicion) has inflicted suffering and disability on an innocent child. He’s not being held accountable for the child’s existence, but rather for the suffering and disability his actions caused. Had this couple been staunch pro-lifers, they still would have the same lawsuit against the doctor.

    And yes, you’ll note that I’ve indirectly expressed my feelings that the parents in this case should NOT be considering having another child—something the newspapers report they are doing. I think it’s shocking and unconscionable that they would consider playing “child roulette,” with the ADVANCE PLAN of aborting any fetus that tests positive for the disorder. I think the only moral choice is for them not to reproduce.

  42. Matt Evans on July 25, 2007 at 3:22 pm

    Nick #35, the things you mention are consequences of the child’s existence. Because the only way to prevent or alleviate those consequences is to prevent the child’s existence, the legal claim is necessarily founded on the child’s existence.

    John #36, your comparison of plans and structure wrongly suggests that the geneticist was partly at fault for the baby’s disability. The geneticist has zero responsibility for the baby’s disability. The allegations are that geneticist is responsible for the baby’s existence. The moral issue arises from our treating the existence of babies like the existence of buildings. I have no moral qualms about recognizing claims that the existence of a particular building is a legal harm. I have moral outrage about recognizing claims that the existence of a particular child is a legal harm.

  43. John Mansfield on July 25, 2007 at 3:38 pm

    Matt, the existence of some children is a harm to themselves and their parents. At least, that’s what we teach the teenagers about unwed pregnancy.

  44. Matt Evans on July 25, 2007 at 4:09 pm

    John, the church teaches the youth that God commands them to wait until marriage, and that children are best served by stable, committed and married parents. The church also teaches that no matter the problems or circumstances surrounding a child, our duty is to love and care for them. Viewing them as a harm, or something along the lines of “unworthy life,” is inconsistent with our duty to love them as ourselves. The church pretty much rejects Peter Singer outright.

  45. John Mansfield on July 25, 2007 at 4:38 pm

    Singer, Shminger. The Church’s teaching to unwed pregnant girls and their parents is that the babies born outside marriage should be given by their mothers for adoption to couples who will hopefully provide for the babies in the proper way. We don’t just say “All life is good. Carry on.” Some things are not as they should be, and we do what we can to right them as much as can be done.

    Mrs. Estrada will spend the rest of her life caring for her invalid children. She will grow old prematurely. Every dollar of the family will go to securing the future of the children. Sometimes, as with the birth of the first Estrada child, that’s just the unavoidable way it is. Incorrect medical counsel was a necessary factor in the birth of the second Estrada child, however. Compensation from the doctor that will enable the Estradas to hire care now and sixty years in the future is a reasonable correction. That doesn’t mean I think the child should be killed.

  46. fMhlisa on July 25, 2007 at 4:42 pm

    What Ardis said.

  47. Sarah on July 25, 2007 at 9:33 pm

    I was under the impression that lawyers pretty routinely make horrible arguments or justify actions that seem despicable as soon as you start actually thinking it through, in the name of producing an intended result. Why flip out on this one, today?

    Note that I am in a grouchy mood about the practice of law, having just read an indictment for a failed attempt at stealing a car (in which no one was hurt, and nothing actually stolen or damaged) that has resulted in 10 charges on the indictment, including one first-degree felony and 4 fifth-degree felonies, which carry, all told, 20 years of mandatory consecutive prison time and 4 recommended-concurrent 18 month terms. It’s a very good thing I’m the pre-law student assistant and not the actual attorney, as I’d have a very hard time not saying the word “blackmail” to the prosecutor — I believe he’s hoping for a plea down to something like 18 months plus 5 years probation.

    Anyway, that prosecutor doesn’t really think that failed auto thieves should go to jail for twenty plus years, and I don’t think anyone in this $21 million case really thought that the child’s existence itself is the harm caused to the parents. Lawyers do some pretty funny dances to get things their way; the alternative is a system that doesn’t take 3 years of education (and a lifetime of practice) to understand, but likely has far less wiggle room for all the difficult-to-handle situations judges, juries, and attorneys are confronted with each day.

  48. Matt Evans on July 25, 2007 at 9:40 pm

    I would agree that not all as it should be: the Estradas should put the child for adoption so he can be raised by people who love him. No boy should be raised by people who believe he shouldn’t exist and that he harms their lives.

    “Mrs. Estrada will spend the rest of her life caring for her invalid children. She will grow old prematurely. Every dollar of the family will go to securing the future of the children.”

    That’s parenthood! My mother-in-law is living with us right now to care for my wife and family, and she’s 74. Caring for kids our whole lives is part and parcel of parenthood.

    The Estradas’ money won’t all go to the kids. The medical bills will be paid either by private insurance or Medicaid. The Estradas are not personally paying $21 million to raise their first child, and they wouldn’t for the second, either. The issue isn’t whether they’ll have to pay the bills — they won’t.

    I oppose wrongful birth claims because they require the court to deny the inherent value of a human life (to recognize a legal harm the court has to agree that the child’s expenses exceed its worth).

  49. Brian on July 25, 2007 at 10:14 pm

    I say award the plaintiffs actual damages, but no punitive damages. We, as a society should not enrich “baby killers”.

  50. Ardis Parshall on July 25, 2007 at 10:17 pm

    If the state does not provide a mechanism for a plaintiff-parent to sue for damages when a doctor’s negligence has the practical effect of causing a fetus to go “untreated” in a medically possible and legally permissible way (although you and I agree that the desired “treatment” of abortion is horrible [substitute any word you choose to express a suitable level of horror]),

    then

    the state cannot provide a mechanism for a plaintiff-parent to sue for damages when a doctor’s negligence has the practical effect of causing a fetus to go untreated in the medically possible and legally permissible way of, say, repairing a heart defect in utero, or any other treatment allowing a child to live who otherwise would die at birth.

    What exactly are you recommending on a practical level?

  51. Jim on July 25, 2007 at 10:37 pm

    It’d be a delicious twist of fate if some enterprising attorney in this kid’s jurisdiction were to have himself declared the kid’s Guardian Ad Litem and then sue the PARENTS for intentional infliction of emotional distress (by claiming the kid was a “wrongful birth”).

  52. Ray on July 25, 2007 at 11:06 pm

    My biggest problem with this whole situation is the implication that the parents believe they are not responsible in any way for the condition of their child. IMO, any person with half a brain would realize that there always is a chance that a baby will be born with some kind of disability – even to a couple with no apparent genetic predisposition, but especially if they already had a child with a disability. Procreation is risky – pure and simple. If my wife and I were thinking about having another child, and if a doctor told us that our future child had no chance of being born with a disability, I would walk away and look for a new doctor – even though we have five very healthy children.

    I know the default argument is that my education allows me to realize that, but aren’t there some things that are so elemental to parenthood that we just have to accept them as untouchable in the context of the law? If someone claimed a doctor told them that sex before 16 or after 40 could not produce kids, would we support punitive damages if conception occurred? What about suing a school district for calling the use of condoms “safe sex” if a student gets pregnant using a condom? I know the specifics are different, but the underlying principle still is that procreation is risky and unpredictable. IMO, when we consciously choose to have a child (or even engage in sex), we should be held legally responsible for the result (the existence of a child) – even if someone else should be held legally liable for the medical care.

  53. Rosalynde Welch on July 25, 2007 at 11:51 pm

    I obviously can’t comment intelligently on the legal aspects of this situation. From what I gather, the case rests on a notion of intentionality: parental rights and obligations fall to those (and only those) who intentionally planned the conception and birth of a particular child. If the preconception intent of the parents is what matters, and they *intended* (and took steps, they thought, to ensure) only to conceive and give birth to a healthy child, then they don’t have the obligation to care for (or financially support) this unintentional child.

    The principle of intentionality seems highly problematic to me, and leads to a lot of outcomes I abhor. But it seems to me that it’s this principle that underlies the LDS position on abortion: women who are raped obviously did not intend to have sex and thus incur the risk of pregnancy, and so they are not obligated to support the fetus. I don’t know how else to understand the LDS abortion stance, so I’m left wondering whether I ought to accept the principle of intentionality on its basis.

  54. Ray on July 26, 2007 at 1:27 am

    Rosalynde, my point is that every couple intends to have a healthy child, but there is no guarantee of that. If the standard is intentionality, then every disability would be grounds for abortion. Rape isn’t a case of intentionality; it’s about agency. If you don’t choose to have sex, you aren’t fully accountable to deal with the results; if you choose to have sex, you are accountable to deal with the results – and even then, you are able to choose between life and life, if necessary. This case doesn’t fit the Gospel principle exception, IMO.

  55. Naismith on July 26, 2007 at 2:24 am

    Just a correction: a couple cannot be pregnant. Only a woman can be pregnant (outside of comedy movies). A couple can be expecting.

  56. Matt Evans on July 26, 2007 at 4:45 am

    Ardis, the thinking goes like this: if we believe we should spend $21 million on health care for a child, it’s because we believe the value of the child is greater than $21 million. If the child’s worth exceeds the child’s costs, there is no legal harm for the court to recognize. Only by alleging that the child is worth less than the cost to care for him can the parents claim they were harmed by the geneticist. Because I believe the courts should treat all people as though their moral worth is infinite, I would have courts deny the parents claim that they are harmed by the child’s existence.

    As for doctors who fail to provide treatment for unborn children, they are liable for malpractice in the same way they are for any other patient. The petitioners in wrongful birth cases, however, argue that death is a medical treatment. Opposition to wrongful birth claims stems from the conviction that death is not medical treatment, and the believe that the society and courts shouldn’t recognize death as medical care.

  57. Adam Greenwood on July 26, 2007 at 8:44 am

    Rosalynde W.,

    That’s a tough question. Initially I’d approach it in three ways. First, I think you’re right that rape and incest exceptions can fit into an intentionality paradigm. But look what the intent is–its intent to do the procreative act, not intent to have a healthy child or necessarily even intent to have a child at all. Otherwise aborting children with Down syndrome or sex-selective abortion would be a permissible exception, but they aren’t. Whether that distinction between intents makes sense is a question I don’t remember having thought through, but its clearly the distinction you have to make to see the exceptions through the prism of intent. In this instance, the couple intended to have a child, they just weren’t aware of the probability that it would be unhealthy.

    The second paradigm is what you might call an individual-burden paradigm. That is, you see the three exceptions as generally an adaptation to the weakness of the saints. You’re saying that carrying the child to term in cases of rape, incest, or threats to the mother’s life will just be too hard a sacrifice to ask people in enough cases that it justifies removing ecclesiastical and social sanctions, though without actually stating that abortion is OK under that circumstance. The converse would be that carrying the child to term in other circumstances is generally not such a sacrifice that it doesn’t justify ecclesiastical sanctions. If you accept this paradigm, then you don’t have to accept the intentionality theory that underlies the couple’s suit.

    The third paradigm is what you might call a societal-weakness paradigm. You’d point to the fact that the church’s three exceptions are the ones that are widespread in our society even among pro-lifers, so you’d say that the commandment we have is not necessarily adapted to the weakness of individual Saints but to the weakness of our society at large–in essence, we’re avoiding having commandments that horrify our general society, possibly for missionary reasons, while leaving room open for individuals to get their own private revelation on the subject. Accepting this paradigm also means, I think, that you don’t have to accept the intentionality theory behind the couple’s suit.

    Anyway, these are my initial thoughts. Let me know what you think.

  58. John Mansfield on July 26, 2007 at 8:51 am

    Matt, replace the abortion-loving Estradas with a couple that would never abort a disabled child. Suppose this abortion-hating couple would have sterilized themselves if they knew there was a 1-in-4 chance a second child would be born with the same severe disabilities that their first child was born with. Suppose they consulted a geneticist about this very matter, and the geneticist incompetently told them their likelihood of conceiving another child with the disabilities of the first was no greater than any other couple’s. Suppose they then conceived and the mother bore a child suffering the very affliction they had consulted the geneticist about and who will require round-the-clock care until he dies of old age.

    In this scenario, did the geneticist harm anyone? Perhaps you would claim that the couple is highly indebted to the mistaken geneticist, since without his blunder, they would not have brought into their family an invalid child of infinite worth?

    Alteratively, if this hypothetical abortion-hating couple had received correct information and chosen sterilization, do you believe their first and only child should be taken from them since they have signalled their preference to not produce disabled children?

  59. Adam Greenwood on July 26, 2007 at 8:53 am

    John Mansfield,
    the geneticist isn’t really going to get punished either way. Apparently he’s a state employee and the parents are wanting the state to pay the damages. Legally as a state employee he may not be liable at all.

    Update: this is not in response to no. 57.

  60. Ardis Parshall on July 26, 2007 at 8:58 am

    Because I believe the courts should treat all people as though their moral worth is infinite, I would have courts deny the parents claim that they are harmed by the child’s existence.

    Matt, I understand as much as a non-parent can the value of a child, and I also appreciate the ugliness of the reductio ad absurdum argument I’m about to make. I don’t believe this; it’s merely a debate point: If your reasoning were valid, then the court should deny awards of child support when a man’s girlfriend gets pregnant against his will, or when one parent abandons children to the other parent to raise; nor should there be any punishment for a rapist whose victim is made pregnant. Have they not all been given children, of such infinite worth that any claim of harm is overwhelmed by the good and must be denied?

    The thing is, it isn’t the existence of a child that is the claimed harm here; it is the geneticist’s incompetence or malpractice that resulted in the parents’ burden of medical expenses they had expressly sought to avoid in a legal way (no matter how immoral that legal way, nor how much you and I abhor it). “Wrongful birth” is not a legally recognized wrong; it is an inflammatory rhetorical term used by partisans in the pro-life fight, deliberately chosen to distort reports of cases like this. You fell for it, or maybe are deliberately using it to further a cause that is so intensely personal and important to you. I support your ultimate goal, but I very much dislike the attempted manipulation.

  61. Adam Greenwood on July 26, 2007 at 9:10 am

    John M.,

    Your no. 57 goes a little beyond where it should in the last two paragraphs. No one is arguing this stuff and it doesn’t necessarily follow from what’s been said before. One key difference between your hypothetical and the $21 million couple is that in your hypothetical in awarding damages the state would not be validating the decision to abort a child with disabilities. It would only be validating the decision to not conceive children if they are highly likely to be disabled. These decisions are on different moral planes.

  62. Adam Greenwood on July 26, 2007 at 9:29 am

    If your reasoning were valid, then the court should deny awards of child support when a man’s girlfriend gets pregnant against his will, or when one parent abandons children to the other parent to raise;

    The court doesn’t have to find that the existence of a child is a legal harm to award child support. Child support isn’t a tort, which is why a father can be required to pay child support even if he did nothing wrongful at all. See my comment no. 25.

    nor should there be any punishment for a rapist whose victim is made pregnant. I’m not following you, AEP. The purpose of tort liability is to make the victim whole for the harms the victim suffered. The purpose of punishment is to punish wrongs, which is why you can punish people even if the harm didn’t result. Under your theory, a rapist who gets someone pregnant should be sentenced for more years than a rapist who doesn’t, but I don’t see it. Rape is rape. See my comment no. 25.

    The thing is, it isn’t the existence of a child that is the claimed harm here; it is the geneticist’s incompetence or malpractice that resulted in the parents’ burden of medical expenses they had expressly sought to avoid in a legal way

    No, the geneticist’s incompetence is the wrong here, but the law doesn’t give people money for wrongs done to them. The law only gives people money if they show that the wrong caused them a harm. Here, the only harm the couple has shown is that they were prevented from aborting their child as they would have preferred. The child was “wrongfully born” (the generally accepted term for these kinds of cases and, in my opinion, an accurate one–I’ve refrained from using it except in quotes in deference to your sensibilities). You’re thinking that it the law does not punish a choice it therefore has to treat the choice as completely valid, but I don’t see why this should be. My ‘wrongful marriage’ and ‘wrongful fidelity” hypos are examples of choices that law allows in some jurisdictions but that nevertheless shouldn’t be the basis for big cash awards.

  63. John Mansfield on July 26, 2007 at 9:32 am

    The second paragraph of #57 follows pretty directly from Matt Evans’ #55 claims that the infinite worth of a living child nullifies any claim that the birth of the child harmed anyone.

    The third paragraph of #57 is a response to the first paragraph of Matt Evans’ #47. I did exaggerate his belief that the Estradas should give up their second child for adoption into an idea that my hypothetical couple’s first child should be taken from them.

  64. Ardis Parshall on July 26, 2007 at 9:44 am

    Here, the only harm the couple has shown is that they were prevented from aborting their child as they would have preferred.

    Here you stop too soon, Adam, avoiding the entire purpose of the award to which you object. You should have completed the sentence with something like “… the consequence of which prevention was an enormous burden of medical expense” It is that burden which the award addresses, not the child’s life.

    I’m on your side in the matter of abortion, and no argument is likely to change that. However, you run a real risk of alienating undecided but thoughtful people who recognize your inaccurate and manipulative presentation of news stories — that’s my chief concern when people who represent *my* side distort the evidence. Maybe you pick up a compensating number of gullible, sentimental and overly emotional undecideds, though.

  65. Adam Greenwood on July 26, 2007 at 10:02 am

    The second paragraph of #57 follows pretty directly from Matt Evans’ #55 claims that the infinite worth of a living child nullifies any claim that the birth of the child harmed anyone.

    Quasi-enrichment type claims (where you have to pay someone for the good they’ve done) usually only apply to financial benefits. If the couple had announced halfway through litigation that they were glad all this happened and they were dropping the suit because they loved their child so much, there’s no chance that the doctor would be able to turn around and sue to recover the benefits he gave them.

    The third paragraph of #57 is a response to the first paragraph of Matt Evans’ #47. I did exaggerate his belief that the Estradas should give up their second child for adoption into an idea that my hypothetical couple’s first child should be taken from them.

    That’s a serious exaggeration in my opinion. A couple might well feel able to care for one disabled child but not two.

  66. Adam Greenwood on July 26, 2007 at 10:10 am

    Ardis P.,

    Not every couple who has an extremely disabled child gets 21 million from the state. You have to show that a wrong was done you and you have to show that you have a harm and you have to show that the wrong caused the harm. Here, the couple’s theory is that the wrong caused the harm because they would have aborted the child if they’d known to test it for gene defects while terminating the child was still legal. They claim that if they were able to terminate their child they wouldn’t have medical expenses. So I don’t see there’s any getting around their objection to the child’s existence.

    You earlier accused me of extreme rhetoric. I pointed to quite a bit of your rhetoric that seemed extreme to me and asked for examples of my own. You did not give any but you didn’t retract anything you’ve said either. Now you started using terms like ‘inaccurate,’ ‘manipulative,’ ‘distort,’ ‘gullible,’ ‘sentimental,’ and ‘overly emotional.’ I think it would be best if I bowed out of our conversation.

  67. Nick Literski on July 26, 2007 at 10:49 am

    #56 Matt Evans:
    As for doctors who fail to provide treatment for unborn children, they are liable for malpractice in the same way they are for any other patient. The petitioners in wrongful birth cases, however, argue that death is a medical treatment.

    This is an overly-broad statement, and seems calculatedly so, in order to elicit a dramatic emotional response. In my experience, which includes reading the controlling legal decisions in all fifty states, the issue of aborting the fetus was very rarely at hand—maybe two or three of the cases. In the vast majority of cases, the issue arose from a doctor who either negligently performed a sterilization procedure, or negligently gave incompetent genetic advice, either of which was followed by the couple conceiving a child.

    Opposition to wrongful birth claims stems from the conviction that death is not medical treatment, and the believe that the society and courts shouldn’t recognize death as medical care.

    I understand that your opposition stems from this conviction. Again, the issue of a fetus being aborted has rarely been raised in the controlling legal decisions.

  68. Ardis Parshall on July 26, 2007 at 11:03 am

    Not every couple who has an extremely disabled child gets 21 million from the state.

    Not every couple who has an extremely disabled child goes to a doctor seeking to know whether their child has inherited a very likely disability. The fact that the doctor was employed by the state, and that the state is thereby liable for the doctor’s malpractice, is irrelevant and is one of those misleading and inflammatory statements I object to.

    There is a VERY great difference between saying that the state-as-employer is liable for a monetary payment in compensation of its employee’s malpractice, and saying that the state-as-impartial-enforcer-of-laws or state-as-guardian-of-its-citizens’-wellbeing has a positive preference for killing disabled unborn children — another such misleading, inflammatory, and objectionable claim.

    We’re on the same side, ultimately, Adam, but arguing two very different points. I’ll curtsy to your bow, and go back to the sidelines.

  69. Nick Literski on July 26, 2007 at 11:19 am

    #62 Adam,
    Here, the only harm the couple has shown is that they were prevented from aborting their child as they would have preferred.

    I have to disagree, Adam. The harm being claimed here is a financial one. The parents (and the child, once it reaches adulthood) will incur considerable financial harm in being “forced” to care for an individual who is entirely unable to meet their own daily needs. Several jurisdictions, where courts have looked at the issue similarly to Matt Evans, still recognize that these econcomic harms are real, and they consequently allow for recovery limited to the financial expenses.

    From the newspaper articles, the parents argued that the financial costs associated with a lifetime of complete care for this child would reach $45 million. Even the defendants argued that it would reach $8.5 million (realizing that there had already been a ruling finding liability). In fact, it’s rather significant that we see no indication that the defendants tried to say that there was no financial harm. They simply argued for a lesser dollar amount.

  70. Adam Greenwood on July 26, 2007 at 11:33 am

    Nick L.,

    I agree that in cases where the couple isn’t arguing that they were prevented from doing an abortion, you have different kinds of considerations than in this particular case. In this case, the economic harms are real only because the parents weren’t able to test their child for gene defects. If the parents hadn’t persuaded the judge and jury that they would have aborted a disabled child, they would have no claim.

  71. Nick Literski on July 26, 2007 at 11:42 am

    As I ponder Matt Evans’ argument further, an illustration comes to mind. Matt argues that the infinite worth of a child outweighs any possible harm which the parents may have suffered as a result of this doctor’s malpractice.

    If this is the case, Matt, please answer one question for me: Suppose that Mr. and Mrs. Evans had a severely disabled child. Suppose that, prior to conception of a second child, Mr. and Mrs. Evans seek a professional opinion from Dr. Jones, who tells them that there is no reason to believe that a second child would suffer the same disability. Relieved, Mr. and Mrs. Evans promptly conceive another child. Nine months later, to their shock, the child is born with the same disability, which they later learn should have been an easy diagnosis. Had Mr. and Mrs. Evans known the likelihood that a second child would suffer the same disability, they never would have taken the risk of having another child. Now, Mr. and Mrs. Evans will spend the rest of their natural lives caring for every physical need of this child, and some unknown person will have to take over for them after they die.

    So here’s the question, Matt. When you next see Dr. Jones, do you embrace him and sincerely thank him for giving you the opportunity to experience the great joy of having that second child?

  72. Nick Literski on July 26, 2007 at 11:45 am

    #70 Adam,
    I agree. The Estradas were already expecting at the time they consulted the doctor. Had they been evangelical pro-life activists (for example), they would have had no case at all.

  73. Adam Greenwood on July 26, 2007 at 11:53 am

    And, therefore, by awarding $21 million dollars, the state’s legal system is not just saying that aborting a child isn’t something we’ll penalize but that we’ll treat it as a perfectly valid choice that can merit compensation if you don’t get to do it.

    In your Evans hypothetical, what the doctor did isn’t praiseworthy but I can imagine praiseworthy people thanking him anyway. What no one should do, however, is say to the child, we’d be better off if you’d never been born. This is what the couple has to claim to carry on their lawsuit. I don’t blame them, because I might say the same thing if that were what I had to do to pay for my kid’s medical care. But I don’t see why the legal system is willing to go along.

  74. Kristine on July 26, 2007 at 12:11 pm

    Are we really 72 comments into this with no one mentioning that church policy allows for the possibility of abortion in the case of “grave defects”?

  75. Adam Greenwood on July 26, 2007 at 12:17 pm

    KHH, I’m not aware of any policy to that effect. I have heard statements by some authorities–Elder Packer?–that allow for the possibility of abortion in instances where the child is so disabled that it will die shortly after birth anyway.

  76. Nick Literski on July 26, 2007 at 12:22 pm

    As much as I share your concern about promoting abortion, I believe the court needs to treat it as “a perfectly valid choice” if it’s legal. I would personally find it outrageous if a civil court issued a decision against the Estradas, based on the judge’s moral opinion that abortion is wicked. Like it or not, abortion isn’t one of those areas where society as a whole is immediately repulsed.

    When you suggest that parents bringing such a suit have to “say to the child” that they’d have been better off if the child was never born, you adopt the argument of a minority of jurisdictions. Obviously, some will agree with you and Matt on this. To me, this is an oversimplification. If anything, the parents are communicating that they would have been better off financially, which IMO is quite separate from the value of the child as a human being.

  77. Matt Evans on July 26, 2007 at 12:23 pm

    Ardis, child support is required only of parents as a duty of their parental obligation. Child support is not intended to make the abandoned parent “whole,” like tort actions are.

    John, “In this scenario, did the geneticist harm anyone? Perhaps you would claim that the couple is highly indebted to the mistaken geneticist, since without his blunder, they would not have brought into their family an invalid child of infinite worth?”

    Yes, unless one believes a child can have negative value the parents are indebted to the incompetent doctor. I’m arguing that society and courts should refuse to treat any children as having negative value.

  78. Nick Literski on July 26, 2007 at 12:27 pm

    From lds.org, abortion may be considered (but is not “automatically” justified) when:

    “A competent physician determines that the fetus has severe defects that will not allow the baby to survive beyond birth.”

  79. Matt Evans on July 26, 2007 at 12:26 pm

    Nick, wrongful birth cases are always about aborting the child because wrongful birth cases only arise when (1) the defendent did not cause the defect, and (2) there are no viable pre-birth corrective treatments. The only so-called “treatment” available to petitioners in these cases is the power to end the child’s life. If the doctor is responsible for the disability, or could have provided treatment for the child and is not, it is not a “wrongful birth” case — it’s garden variety malpractice.

  80. Adam Greenwood on July 26, 2007 at 12:33 pm

    All right. I have trouble understanding the moral calculus behind that, but it isn’t what’s going on here. The child lived.

  81. Matt Evans on July 26, 2007 at 12:32 pm

    Thanks Nick, it’s someone else’s turn to correct Kristine. : )

    So here’s the question, Matt. When you next see Dr. Jones, do you embrace him and sincerely thank him for giving you the opportunity to experience the great joy of having that second child?

    Unless I think the child has negative value, I will be joyful, by definition. I don’t believe any children have negative value, and definitely don’t want courts accepting arguments that some children have negative value.

  82. Adam Greenwood on July 26, 2007 at 12:36 pm

    #75,

    I disagree. As in my ‘wrongful marriage’ and ‘wrongful fidelity’ examples, I don’t see why a society is logically compelled, if they don’t penalize a choice, to also award damages if someone’s error prevents you from taking it. I see no particular reason why the state should have to act as if it didn’t care about abortion one way or the other. I am outraged that a judge or judges in Florida and other jurisdictions have effectively adopted the view that the worth of a child depends on whether it would have been wanted or not

  83. Adam Greenwood on July 26, 2007 at 12:39 pm

    #77,
    Not all wrongful birth cases are about aborting the child. I have some difficulties with all classes of wrongful birth cases, but as Nick L. points out many cases involve couples asking for compensation because a child shouldn’t have been concieved in the first place, not because the child should have been aborted.

  84. Matt Evans on July 26, 2007 at 12:43 pm

    You’re right. I’m sure there are tubal ligation cases, too.

  85. Nick Literski on July 26, 2007 at 1:00 pm

    Yes, the case that I was involved with was a tubal ligation case. The woman had an earlier tubal pregnancy, at which time the doctor had to remove a portion of the left fallopian tube and tie it off. Then she had another planned child, after which she wanted a tubal ligation. The same doctor apparently never consulted his records, and became confused. Rather than tie the right tube, he found the remnants of the left tube and removed another chunk. (I know this doesn’t seem to make sense, but it was actually very clear in his operative notes what he had done.) This, of course, left the right tube fully intact. Another pregnancy resulted, and the mother was certainly not going to abort the child. Sadly, the child was born with significant deformities, which resulted in huge medical bills, some of which were actually for lifesaving procedures, others of which were for more “cosmetic” procedures to allow the child to have a normal appearance. That state (Illinois) allowed only for recovery of actual expenses resulting from the pregnancy and birth, not for “raising” the child. When the insurance company saw how clearly the doctor’s own records showed his negligence, they settled for an appropriate amount that would cover the expenses involved.

    I just can’t say that I felt in any way morally wrong for helping with this case. The parents clearly loved their child. At the same time, I believe the doctor was responsible for those particular costs. He was unquestionably negligent, and the costs would never have occurred, had he performed his services responsibly.

  86. John Mansfield on July 26, 2007 at 1:53 pm

    “What no one should do, however, is say to the child, we’d be better off if you’d never been born.”

    Here’s an actual case known to me, and it’s a common one. A young LDS woman, who I’ll call M., conceived a child. She and her boyfriend repented of their sin and married. He was baptized; the family was sealed in the temple. Everything has been made whole. M.’s firstborn is now a teen. This daughter has noticed the interval between her birthday and her parents’ anniversary, and M. has discussed it with her. Because M. has forsaken her sin, she doesn’t chuckle that that may not have been the best way to do things, but hey, look how good it all turned out, especially having you as my daughter. M. has told her daughter flat out that what M. did was wrong and that she hopes her daughter will not repeat her previous sin.

  87. Adam Greenwood on July 26, 2007 at 2:17 pm

    No quarrels with any of that, John M., except that I don’t think its relevant to the italicized quote. Like I said in a previous comment, Christ makes beauty from ashes but that doesn’t justify us in burning things down.

  88. Rosalynde Welch on July 26, 2007 at 4:18 pm

    Adam, thanks for your response. I agree that if the intentionality paradigm is at work in the LDS abortion position, then it’s incompletely carried through, since sex-selection and so forth are prohibited.

    I see the logic of the other two accounts you provide—individual burden and societal weakness—but I don’t know how to reconcile pragmatic approaches like those with the morally absolute value of human life that presumably underlies most anti-abortion positions.

    On a slightly different note, these topics are so difficult for me because I’ve found that my moral intuition is not principled—or at least I haven’t yet discovered its principle. Some cases are immediately reprehensible to me, some are not. I feel no intuitive outrage at the prospect of embryo destruction for stem-cell research, for example, but I’m repulsed by abortion to reduce the number of fetuses in a multiple pregnancy, to name one of many. So I have to reason my way to a position, but I don’t know what to take as foundational premises.

  89. Adam Greenwood on July 26, 2007 at 4:39 pm

    I see the logic of the other two accounts you provide—individual burden and societal weakness—but I don’t know how to reconcile pragmatic approaches like those with the morally absolute value of human life that presumably underlies most anti-abortion positions.

    I bet I’m eliding some of the real difficulties in my position by saying this, but I’d just say that neither the individual burden or societal weakness approach commits you to actually sanctioning an offense against the absolute value of human life. Silence is not consent.

    On a slightly different note, these topics are so difficult for me because I’ve found that my moral intuition is not principled—or at least I haven’t yet discovered its principle. Some cases are immediately reprehensible to me, some are not

    Can’t help you there. What makes the most sense to me as foundational principles are incarnationalist Catholic stuff I’ve read on the relation of the soul and the body and the nature of human worth but they don’t work for Mormons for various reasons, the pre-existence being the principal one. So I’m muddling along.

  90. Ray on July 26, 2007 at 7:07 pm

    Blatant and indefensible threadjack to Adam – Feel free to skip, everyone else:

    Thanks, Adam, for the “intellectual combatants” link. I haven’t laughed that hard while reading an “intellectual” piece for a long time.

  91. Ted M. Cannon on July 27, 2007 at 1:55 am

    Matt: I don’t think it’s inconsistent for the law to recognize a child’s “infinite worth” in a spiritual sense while still compensating the parents for the economic cost of raising the child. The law recognizes the non-economic value of the child’s life by making it illegal to kill him after he’s born, and imposing an obligation on the parents to care for him. Why can’t the law also recognize the economic cost of the child to the parents?

    You are not suggesting, are you, that the law should value the spiritual worth of a child in economic terms? If a huge corporation is found liable for the wrongful death of a child, should the child’s parents be awarded 100% of the corporation’s assets to compensate for the child’s “infinite worth?” (Even that would not be enough, I guess.)

  92. Adam Greenwood on July 27, 2007 at 7:27 am

    Under your approach, Ted M. Cannon, what would the damages be if the parents wanted children but the doctor’s negligence kept them from doing so? The parents are much better off economically without the children.

    I earlier suggested the possibility of a ‘wrongful fidelity’ suit. A man consults with a lawyer who mistakenly advises him that in this jurisdiction adultery is criminal. The man refrains from committing adultery. He later discovers that the advice was wrong. Should the man be able to sue the lawyer for the loss of satisfaction he incurred? What if the man’s claimed losses weren’t just losses of ‘satisfaction,’ but economic losses (suppose, for instance, that his preferred paramour is a wealthy businesswoman and the evidence is fairly convincing that his own businesses would have profited from his relationship with her)? I don’t like the idea of the law awarding damages in this circumstance, even though they are economic.

    Even if the law made a strict distinction between finances and mental/emotional/spiritual realms, and even if it doesn’t criminalize adultery, the law still should not accept a causal chain that includes the statement “and I would have committed adultery.” In the case we’re discussing in this thread, the causal chain includes the statement “and we would have aborted our child.’ The state’s refusal to punish people for seeking abortions does not and should not equate with accepting abortion as a valid, compensable choice.

  93. Adam Greenwood on July 27, 2007 at 8:34 am

    The one thing that makes me feel better about this award is my suspicion that no one really means it. That is, the parents want some money to help with their extremely serious financial problems, the judge and jurors would like to give the money to them, and no one is too concerned about the legal theory that gets them there. I doubt anyone is actually thinking ‘oh, those poor people, if only they’d been able to abort their baby’ though that’s an essential part of the chain of legal reasoning you have to do to make an award.

  94. Adam Greenwood on July 27, 2007 at 8:44 am

    John Mansfield,
    I’ve been thinking over your point about conceiving children out of wedlock being wrong. Two points: first, its not clear that conceiving children out of wedlock is wrong. The church teaches that sex out of wedlock is wrong but I don’t know of any teaching one way or the other on whether the sin is lessened if you’re sterile or greater if you aren’t using birth control. Second, the church teaches that aborting an illegitimately-concieved child is wrong, which suggests that even if bringing a child into existence is wrong in some circumstances, ending its existence is worse. Ending the existence of an existing child is what the couple in this case wanted to do.

  95. Adam Greenwood on July 27, 2007 at 8:55 am

    Rosalynde W.,
    Two thoughts: first, it may be worthwhile exploring your intuitions about why murder is wrong. Abortion isn’t necessarily murder but it could give you a starting point. Second, you may want to put up a post inviting explanations for your apparently conflicting moral intuitions that twin-reduction is wrong but embryo-destroying research is OK. That seems pretty contradictory to me. Off-hand, the only way I can see of making sense of it is if the embryo-zygote-fetus etc. is not itself a moral concern per se but if something like the integrity of the natural reproductive process and female biology is a moral concern. So you might get upset at tinkering with the womb to adjust the number of children, but not with embryo research, because at that point the ‘immoral’ thing, i.e, in vitro conception, has already happened. Or maybe you accept something like the abortion ideology that the embryo-zygote-fetus becomes a person once chosen but your idea of ‘choice’ is much more expansive, encompassing biological relation and not just a conscious decision maintained for 9 months. Or maybe there isn’t a consistent rationale and your revulsion to the one and not the other is because the vehicle through which you have learned to value children is by your own relation with them, beginning with the biological relationship of the child conceived in marital union and developed in your womb–and in some ways you relate to children not your own by extension of your own experience, i.e., by empathy with their mothers–and so you value the implanted embryo and are horrified at its reduction but have no entry point to be concerned about the embryo that is conceived in a tube, kept frozen in a dish, and experimented upon in a lab. At no time did the embryo have a biological connection with its mother.

  96. Matt Evans on July 27, 2007 at 10:46 am

    Ted, I actually consider all monetary awards for pain and suffering — especially when awarded to third-parties — to be morally offensive. To give plaintiffs money to compensate them for the loss of their child, or to compensate them for the pain and suffering of themself or their child, is to officially perpetuate the myth that money’s a substitute for love.

    I think it would be helpful to know how families who win the Our Child Was Killed by a Corporation Lottery fare emotionally and pscychologically. To me it would seem soul destroying to buy a nice house, nice cars, nice vacations, or whatever else people do with an unexpected $5 million (or even $200k) and know they enjoy those things because baby Emma choked to death on her own blood.

    Because I think it’s perverse to compensate a person who’s lost a child with a motor home, or anything else money can buy, I would prohibit all awards for pain and suffering, loss of companionship, etc. Corporations could be sued for their harms (I subscribe to Least Cost Avoider analysis), but the damages would not be awarded to the victims but to charities or public health programs. That way we could avoid perpetuating the corrosive but common lie that money is a substitute for love.

  97. Ardis Parshall on July 27, 2007 at 12:16 pm

    I think it would be helpful to know how families who win the Our Child Was Killed by a Corporation Lottery fare emotionally and pscychologically.

    One family I know very, very well is doing just fine, emotionally and psychologically, thank you very much. All of his many little sisters would rather have had the care and companionship of their older brother, but the settlement following his death paid for their education. They went to school with the attitude that their brother, who had looked out for them on the playground and helped them raise money for girls’ camp and driven them to early morning seminary, had left them one last gift when he could no longer be there himself.

    Attitude.

  98. Ardis Parshall on July 27, 2007 at 12:55 pm

    I’ve been told privately that my comment (97) can be interpreted as combative and personally insulting to you, Matt. That is not my intention. I merely provide an illustration of a case very near to me, that — unexpected though it may be — illustrates an alternative approach to the use of legal awards which has been a comfort to one family. Had they wasted the money in a gluttonous and frivolous spree as if they were the lucky beneficiaries of a fortunate turn of events, I would be disgusted along with you.

  99. Matt Evans on July 27, 2007 at 1:28 pm

    “All of his many little sisters would rather have had the care and companionship of their older brother”

    No offense taken, Ardis. I won’t discuss the specifics of this family, which I’m happy to know appears to be doing well, because I know nothing about them. Given the frequency of family estrangements, however, I think that there are many, many people who would gladly exchange their spouse or sibling for $1 million. Some people even pay, and risk their mortal liberty and immortal souls, to have a family member die. (Think how much better it would be for Scott Peterson had Lacy just dropped dead from PhenFen on December 23.) How many spouses contemplating divorce would think it better if their spouse just died (no arguments, no visitation messiness, no divorce stigma, no social awkwardness, no gossiping or finger pointing, just universal support and sympathy) and left them a few million dollars?

    Most people, we can hope, aren’t ambivalent or desirous of a family member’s death. To help understand my view even about why it’s bad even for good people, imagine a court said, “It is clear that Company X was responsible for your daughter’s death. Her horrific pain and suffering, your unimaginable pain and suffering, coupled with the permanent loss of her companionship and all your shared hopes and dreams, is unspeakable. Your loss truly transcends words. Here’s $10.” Ten bucks is worse than nothing, the equivalent of a nickel tip, and is plainly insulting and degrading. I believe that whether $10 or $10 trillion, the award of money for pain, suffering, and loss of companionship is insulting and degrading. We shouldn’t pretend that money is even a partial substitute for relationships.

  100. Nick Literski on July 27, 2007 at 1:30 pm

    The idea of compensation beyond mere economic loss is as old as Leviticus. It’s true that money is no substitute for love and companionship, but there is no way to restore those. The legal system represents a few thousand years of society attempting, in the ways it can, to see that victims are made whole. It’s not perfect, but in broad strokes, it’s worthy of a lot of respect.

    I’ve been thinking overnight about this idea that the parents should never recover in a wrongful pregnancy or wrongful birth suit, because the child’s life is “of infinite worth.” It sounds very pretty, to be sure. Where does that logic take us, though?

    Suppose I’m walking down the street, and some lunatic negligently loses control of his vehicle, crashing into me. As a result, I am left paralyzed from the waist down. Now, surprising as it may be to some (grin!), my life is just as much “of infinite worth” as some infant’s. Under the legal theory advocated, I should never be able to recover for my injuries against the driver, because no matter how badly I’m injured, my life is “of infinite worth,” and I still come out ahead!

    You don’t like that result? It’s the only logical result under the proposed “life is of infinite worth” doctrine.

  101. Adam Greenwood on July 27, 2007 at 1:54 pm

    Throughout the thread there are some legitimate objections about how the legal system would work under the ‘life is on infinite worth’ concept, but I’m not sure yours is one of them. Unlike in the wrongful birth examples Matt E. has used, the negligent driver did not give you your life. Unlike with his most recent attacks on compensation for pain and suffering, you would still be entitled to damages for your loss of income, medical expenses, and extra expenses you would incur to go about your affairs in the future.

    Where I do agree with you is that the idea for compensating for losses that are more than financial is time-tested. (In fact, I think Matt E. is being a little inconsistent here. Can you argue on one hand that wrongful birth suits shouldn’t be allowed because the non-economic worth of a human life outweighs any possible harm suffered, but on the other than the legal system shouldn’t take the destruction of that non-economic worth into account when awarding tort damages?). However, the particulars of our current legal regime aren’t quite as hallowed. I think Matt E. has persuaded me that we would be better off if our system weren’t claiming that pain and suffering and loss of companionship damages were intended to make the victims whole.

    Y’all, we’ll be wrapping up this thread here pretty soon.

  102. Matt Evans on July 27, 2007 at 1:58 pm

    Nick and Adam, if someone is harmed, I believe they should be compensated for their actual expenses (medical care, special needs, etc.), and that punitive damages can be charged to modify corporate behavior. I would have the punitive damages given to charities or public health projects so we don’t pretend that the money compensates for loss of life or health.

  103. John Mansfield on July 27, 2007 at 2:33 pm

    Lives don’t have infinite worth. There is only so much we are willing to pay to postpone death; paying more would take too much away from the lives of those who haven’t died yet. It’s a cliche, but fatal crashes happen several times every year on the stretch of freeway I’ll drive home on in a few hours. The chance of death isn’t worth the cost of staying home, a cost that could be counted in dollars and isn’t enormously huge.

  104. Matt Evans on July 27, 2007 at 3:02 pm

    None of our lives have infinite economic worth (we don’t spend the whole GDP to prevent a death), but it’s the “infinite worth” paradigm that causes us to criminalize and punish murderers. Without “infinite worth” the courts woudn’t punish murder, just ensure the murderers’ checks clear.

  105. Ray on July 27, 2007 at 3:03 pm

    I have advocated Matt’s position in #102 as to the payment of punitive damages. The only addition I would make is that punitive damages not be subject to any attorney’s fees. It would be interesting to see how punitive damages were handled if neither the plaintiff nor the attorney profited from them.

  106. Adam Greenwood on July 27, 2007 at 3:16 pm

    The factory whistle’s blowing, y’all. If you have more comments to make, email me at adam at timesandseasons dot org. No guarantees.

WELCOME

Times and Seasons is a place to gather and discuss ideas of interest to faithful Latter-day Saints.