Wrongful Pregnancy
WRONGFUL PREGNANCY
A claim by parents for damages arising from the negligent performance of a sterilization procedure orabortion, and the subsequent birth of a child.
In wrongful pregnancy cases (also known as wrongful conception), parents file a negligence action against the medical provider for failing to perform a sterilization or abortion correctly, which results in the birth of a healthy but unwanted child. Wrongful pregnancy cases are different from wrongful birth cases. In wrongful birth actions, the provider is charged with negligence in failing to diagnose a birth defect, which would have allowed the mother to have an abortion instead of giving birth to a child with birth defects.
Parents in wrongful pregnancy actions may be able to sue for damages on the basis of the cost of the unsuccessful procedure and any pain or suffering associated with the sterilization or abortion. The parents may also recover damages for the medical expenses, pain, and suffering attributable to the pregnancy, the mother's lost wages due to the pregnancy, the husband's loss of consortium during the pregnancy, and the economic and emotional costs of rearing the child to maturity. Of these, the claims for the costs of rearing the child have presented the most difficulty for the courts.
Some courts have taken the position that the costs of raising a child are not recoverable damages. Another objection that has been raised is that allowing damages for the cost of rearing a healthy child requires the parents to deny the worth of the child, which may cause considerable emotional harm to the child when he eventually learns of the lawsuit. However, the plaintiffs may still be able to recover damages for the costs of the pregnancy and the birth if they can prove negligence.
Other courts have allowed recovery for the expenses of rearing the child, but insist that they be offset by the benefits of having a normal, healthy child.