Currently,
in 28 states you can sue a physician for malpractice if they don’t disclose a
potential health issue that might affect the quality of life of a child after
they are born.
But
opponents of this legal option are attempting to get rid of so-called “wrongful
birth” laws in several states.
“We’re
pushing back against the idea that there are certain children that shouldn’t be
born, that something like a birth could be wrong,” Eric Scheidler, executive
director of the Pro-Life Action League, told Healthline.
That push is
gaining traction in Texas, where a proposal that would eliminate lawsuits
involving wrongful birth legal action is working its way through the state legislature.
If
successful, Texas
Senate Bill 25 would
not only eliminate this type of malpractice suit, it would also send a message
Scheidler and others who oppose abortion rights seek.
Read more: New laws restrict abortion without outlawing
it »
What is
wrongful birth?
Wrongful
birth is its own separate type of malpractice.
In involves
a rare situation where a doctor chooses not to tell a pregnant woman about a
medical condition a fetus has or doesn’t order the typical diagnostic tests to
determine the unborn child’s health.
Abortion
rights proponents say these instances deprive patients of the ability to make
decisions about their future and their child’s future.
“There are
unintended consequences, like in situations where, had a woman known about a
harmful condition earlier, she would have sought treatment earlier,” Blake
Rocap, legislative counsel for NARAL Pro-Choice Texas, told
Healthline. “Taking people’s agency away from them is just bad medicine. It
takes away opportunities to seek treatments that might not be abortion.”
How many
cases it would affect is hard to say. Rocap said that’s in part because many
such cases settle.
Read more: Why the
abortion rate is decreasing »
What is the
definition of “wrong”?
Texas was
the first state to recognize wrongful birth legal actions, according to a presentation
the advocacy group
Texas Alliance for Life made in support of the proposed law.
The current
law has been challenged three times and upheld each time, group members told
the state senate’s Health and Human Services Committee.
The group
said 28 states recognize this law, but nine have since eliminated it through
legislative action.
In Texas,
the debate began after a 1975 case in which a pregnant woman came down
with rubella during her first trimester and later
gave birth to a child with defective major organs.
She and her
husband sued their doctor for not diagnosing the rubella or telling them about
how it might affect the fetus. They won.
A modern
risk could come from something like the Zika virus, which can cause
microcephaly and developmental delays in babies of infected mothers. There have
been 330 cases of Zika in Texas in the past three
years, according to the state’s health services department.
But saying
that it’s “wrong” to give birth to a child who is born impaired is wrong, said Scheidler.
“Children
aren’t mistakes. That’s horrific that someone’s birth could be wrong,” he said.
“We make such an effort to accommodate people with disabilities in this
country, and this is a direct contradiction of that really excellent
institution that the American people have set up. To say that there are people
who shouldn’t be born sends a terrible message.”
Scheidler
speaks from experience. He has a niece who he says can’t walk or talk.
“The idea that
her life is a mistake?,” he asks.
Read more: Why Planned Parenthood won’t accept President
Trump’s ‘no abortion’ deal »
The case for
“wrongful birth”
Defenders of
the legal avenue say they are focused on potential parents having all the
necessary information to make a decision.
They add
they want to ensure there aren’t situations in which a doctor who opposes
abortion rights might impose their beliefs.
“Doctors
have high ethics and are not in the practice of lying to their patients. But
the question is, are there doctors out there who would do that if they could
get away with it?” said Rocap. “If it’s so rare why take it off the books?”
Rocap says
rolling back the wrongful birth legal option would only ban a specific and rare
set of malpractice suits.
Plaintiffs
could still sue over other possible malpractice — like if the doctor were to do
something harmful in the delivery of the child.
The bill
passed the Texas Senate on March 20 and it is now moving through the House.
The post Should Doctors Be Sued for ‘Wrongful Birth’? appeared first on How People Do.
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