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Typically a child and the parents will sue a doctor or a hospital for failing to provide information about the disability during the pregnancy, or a genetic disposition before the pregnancy. Had the mother been aware of this information, it is argued, she would have had an abortion, or chosen not to conceive at all.
Historically, only parents could sue for their own damages incurred as a result of the birth of a disabled child (e.g., the mother's own pregnancy medical bills and cost of psychiatric treatment for both parents' emotional distress resulting from the realization that their child was disabled). This cause of action is known as wrongful birth. But the child could not sue for his or her own damages, which were often much more substantial, in terms of the cost of round-the-clock personal care and special education.
In four U.S. states the child is allowed to bring a wrongful life cause of action for such damages. In a 1982 case involving hereditary deafness, the Supreme Court of California was the first state supreme court to endorse the child's right to sue for wrongful life, but in the same decision, limited the child's recovery to special damages. This rule implies that the child can recover objectively provable economic damages, but cannot recover general damages like subjective "pain and suffering"—that is, monetary compensation for the entire experience of having a disabled life versus having a healthy mind and/or body.
The Supreme Court of California's 1982 decision, in turn, was based on the landmark California Court of Appeal decision in Curlender v. Bio-Science Laboratories (1980). The Curlender decision involved a child who was allegedly born with Tay-Sachs disease after the parents relied upon the defendants' representations about the reliability of their genetic tests in refraining from proceeding with amniocentesis.
|“||The circumstance that the birth and injury have come hand in hand has caused other courts to deal with the problem by barring recovery. The reality of the 'wrongful-life' concept is that such a plaintiff both exists and suffers, due to the negligence of others. It is neither necessary nor just to retreat into meditation on the mysteries of life. We need not be concerned with the fact that had defendants not been negligent, the plaintiff might not have come into existence at all. The certainty of genetic impairment is no longer a mystery. In addition, a reverent appreciation of life compels recognition that plaintiff, however impaired she may be, has come into existence as a living person with certain rights.||”|
Curlender was not the first appellate decision to authorize a cause of action for wrongful life—it noted that a 1977 decision of the intermediate appellate court of New York had taken the same position, and was promptly overruled by the highest court of that state a year later. However, Curlender stands as the first such appellate decision which was not later overruled.
In Germany, the Federal Constitutional Court declared wrongful life claims unconstitutional. The court reasoned that such a claim implies that the life of a disabled person is less valuable than that of a non-disabled one. Therefore, claiming damages for one's life as such violates the human dignity principle codified in the first article of the German Basic Law.
Belsky, Alan J., Injury as a Matter of Law: Is This the Answer to the Wrongful Life Dilemma?, 22 U. Balt. L. Rev 185 (1993).
- Turpin v. Sortini, 31 Cal. 3d 220 (1982).
- Matthew O. Jannol (2004). "Wrongful Life and Pragmatic Justice in Light of Changing Societal Values: Turpin v. Sortini" (doc). Tort Stories -- Student Papers from 2003-04. Steve Sugarman; UC Berkeley School of Law. Retrieved Feb 21, 2015.
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- Curlender v. Bio-Science Laboratories, 106 Cal. App. 3d 811 (1980).
- Robert H. Blank, Fetal Protection in the Workplace: Women's Rights, Business Interests, and the Unborn (New York: Columbia University Press, 1993), 139.
- Daniel J. Kevles, In the Name of Eugenics: Genetics and the Uses of Human Heredity (Berkeley: University of California Press, 1985), 293.
- Sheppard-Mobley v. King, 4 N.Y.3d 627, 797 N.Y.S.2d 403, 830 N.E.2d 301 (2005).
- McKay v. Essex Area Health Authority  1 QB 1166.
- Bovingdon v. Hergott, 2008 ONCA 2, 290 D.L.R. (4th) 126.
- Harriton v. Stephens  HCA 15, 226 CLR 52, 226 ALR 391. See also Waller v James  HCA 16; (2006) 226 CLR 136; (2006) 226 ALR 457.
- BVerfGE 88, 203 (296).
- Buijsen, Martin (3 June 2005). "Wrongful life-vordering gehonoreerd" [Wrongful life claim honored] (PDF). Medisch Contact (in Dutch) (Utrecht: Royal Dutch Medical Association) 60 (22): 946–948. ISSN 0025-8245. Retrieved 23 June 2013.
- Appel, Jacob M. (2004). "Physicians, 'wrongful life' and the Constitution". Medicine and health, Rhode Island 87 (2): 55–8. PMID 15031969.
- Foutz, TK (1980). "'Wrongful life': The right not to be born". Tulane law review 54 (2): 480–99. PMID 11665224.
- Perry, Ronen (2008). "It's a Wonderful Life". Cornell Law Review 93: 329–399.