We need wrongful birth lawsuits against parents.

Currently, wrongful birth lawsuits are used by parents against doctors for failing to warn them of possible health hazards to their future child. Like most malpractice lawsuits, they go for extremely high amounts of money and are high-profile.

As an antinatalist and anti-childist, I cannot but approve of such lawsuits. Doctors who fail to warn parents of problems with the fetus, which leads to the birth of a compromised child, should be condemned by society. But I also think that they are not taken nearly far enough. The interests of the parents are considered to be the most important here. But what about the interests of the child, now born, living a half-life of suffering or deficiency? Who are we supposed to feel worse about, the parents, who are presumably healthy and not living a life of suffering, or the child, who never asked to be born?

But this is not solely an emotional issue. If you believe that children have the right to the highest possible standard of health, and you must believe this if you are to believe that we have any right to health as an adult, then the responsibility of parents in this case is a legal one. If a child is born with physical or mental defects which ensure that it cannot attain the highest possible standard of health, then its rights are infringed upon. Who is doing the infringing? Ultimately, the parents, who dragged it into this world. Obviously in some cases the doctor is partially responsible. But in all cases, the actions necessary to bring about a new life rests with the parents.

I foresee a few objections. Some of them are trivial, like the perpetual “everyone has bad things happen to them in their lives, get over it” macho boasting (I have discussed other rationalizations here), which does nothing to address the argument I’ve presented and is therefore irrelevant. But what if the parents do not know that the child’s health will be compromised? Can we really hold them responsible for giving birth to it?

Parents are aware, or should reasonably be aware, of the fact that giving birth to a child means taking the risk that this child will be born with compromised health. It is common knowledge that this sort of thing happens. Many parents may live in a bubble of delusion (Not My Child syndrome), but delusion does not divest you of responsibility. You may delude yourself into believing that you can drive at any speed without risk, but the accident that may result will still be your responsibility. If a parent has a child and that child turns out to be disabled in some way, the birth should be considered to be the legal equivalent of inflicting that same disability on an already existing child, which is to say, battery or assault. If the child dies, then the parents should be considered guilty of manslaughter.

This may seem rather harsh, especially compared to the cases involving doctors, which only involve monetary compensation. But the doctors are only guilty of malpractice, in that they failed to inform their patients of an important health issue. The doctor did not cause the child to be born with a disability, they merely didn’t prevent it from happening, which makes them a huge asshole but doesn’t qualify as assault. At best we could say that the malpractice, if present, mitigates the parents’ crime.

Another objection may be that the parents do not inflict the disability on their child themselves, that it’s a by-product of nature. But we do not use such excuses in similar cases. Giving someone AIDS without their consent is considered a crime (often a felony) in most countries of the Western world. And yet children born with HIV get no recourse later in life. There is a profound hypocrisy in a statement like that. The fact that there is some distance between the parents’ decision to have a child which could be compromised and the actual compromising is no more an excuse than the fact that you can poison someone instead of just punching them. Poisoning someone takes longer and is mediated by their biology, while punching someone is not, but both are criminal acts.

12 thoughts on “We need wrongful birth lawsuits against parents.

  1. sbt42 April 8, 2017 at 04:51 Reply

    I wonder what difference there would be based on who raises the charges against the parent.

    For example, if a typically-able child (one without intellectual abilities) raises the charge against their parents, would it be a stronger case than that raised by a concerned family member, health practitioner, or legal advocate?

    I think the backlash against those who are not afflicted by the parents themselves would have a major uphill battle, and a public relations nightmare. But people with intellectual abilities may not be able to learn or understand the nature of their circumstance and even though they would have a stronger case if they put it forth for themselves they may not know how.

    This is probably why the legal profession hasn’t pursued this tack at all yet. The cases would be very difficult to win. The client they would represent may not even know why they should sue their parents or guardians.

    • sbt42 April 8, 2017 at 15:41 Reply

      Looks like my original comment was altered.

      If it was altered (and not just me injecting a host of typos), would you prefer I use the term “differently-abled” or something else?

      • Francois Tremblay April 8, 2017 at 16:19 Reply

        I don’t alter any comments. I either approve them or trash them.

  2. Deep Thinking April 8, 2017 at 05:37 Reply

    “If you believe that children have the right to the highest possible standard of health, and you must believe this if you are to believe that we have any right to health as an adult…”

    Why?

    • Francois Tremblay April 8, 2017 at 14:20 Reply

      What meaning could a right to health possibly have if you don’t have the right to start your life in the best possible health? If you start life with a crippling disease, you’re probably not gonna live a healthy life.

      • Deep Thinking April 9, 2017 at 02:09 Reply

        Could I not start my life without a crippling disease yet not in the best possible health?

  3. Nicole April 8, 2017 at 14:17 Reply

    Learning about anti-natalism from this blog with great interest.. some people born with disabilities may wish they were never born or not even be capable of expressing such a wish but what about those people born with disabilities who are glad to be here regardless and live meaningful and fulfilling lives? I wonder, how can someone with no knowledge of what it feels like to be in their situation, decide its not worth living through?

  4. Michael H April 9, 2017 at 07:40 Reply

    Joel Feinberg addresses 5 objections to Wrongful life suits in his paper Wrongful Life and the Counterfactual Element in Harming. Lots of useful terminology for us. The writing is crystal clear.

    Abstract:
    I shall be concerned in this paper with some philosophical puzzles raised by so-called “wrongful life” suits. These legal actions are obviously of great interest to lawyers and physicians, but philosophers might have a kind of professional interest in them too, since in a remarkably large number of them, judges have complained that the issues are too abstruse for the courts and belong more properly to philosophers and theologians. The issues that elicit this judicial frustration are those that require the application to border-line cases of such philosophically interesting concepts as acting, causing, and the one that especially interests me, harming.

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  5. sellmaeth April 10, 2017 at 15:30 Reply

    I am not fond of men telling women what to do with our bodies. While we still live in a world where abortions are illegal in many countries (and arguably, abortions are not perfectly medically safe in the civilised world, either), it would be extremely misogynist to enable children to sue their mothers for deciding to not have an abortion. An abortion is a medical procedure, which has risks, and entering a hospital environment where she is at the mercy of male doctors makes a woman vulnerable.

    If we lived in a world where men never rape women, then I would agree that children whose mothers knowingly inflicted an inheritable disease on them, should be able to sue, but considering that we cannot ever be sure that the pregnancy was the mother’s choice, that does not seem fair, either.

    So far, most countries have laws against incest, which somewhat covers the problem with inheritable diseases that run in the family, and I would be in favour of enabling the children of a woman who was raped by a male relative to sue on their own behalf and add to the rapist’s prison sentence, seeing as such men are not kept in prison for life. (Which they should because of the rape alone, but if a new law is easier to achieve, I am all for it.)

    … actually, all children conceived in a rape should be able to sue the man who raped their mother for the psychological damage he inflicted on them. Regardless of whether they are disabled or not.

    • Francois Tremblay April 10, 2017 at 15:44 Reply

      “… actually, all children conceived in a rape should be able to sue the man who raped their mother for the psychological damage he inflicted on them. Regardless of whether they are disabled or not.”
      We definitely agree on that. :)

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