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See generally Trotzig, M., The Defective Child and the Actions for Wrongful Life and Wrongful Birth, Family Law Quarterly 14:15–18 (1980).Google ScholarPubMed

For an extensive list of such decisions for “wrongful birth,” see id. at 15, n.6.Google Scholar

See Furrow, B., The Causes of “Wrongful Life” Suits: Ruminations on the Diffusion of Medical Technologies, Law, Medicine & Health Care 10(1): 11 (February 1982).Google ScholarPubMed

Schroeder v. Perkel, 432 A.2d 834 (N.J. 1981) at 841.Google Scholar

The phrase is used by Judge Handler, concurring and dissenting in Schroeder v. Perkel. Id. at 845.Google Scholar

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Several diminished life suits have involved failures to convey correctly to parents the likelihood that their offspring would possess genetically transmitted impairments, based on the parents' history or defects apparent in another child in the family. See Moores v. Lucas, 405 So.2d 1022 (Fla. App. 1981) (Larsen's syndrome in mother); Schroeder v. Perkel, supra note 5 (first child suffered from cystic fibrosis; physicians treating first child failed to diagnose condition in time for parents to prevent or abort second pregnancy); Curlender v. Bio-Science Laboratories, 165 Cal. Rptr. 477 (Cal. App. 1980) (negligently conducted tests on parents for Tay-Sachs disease); Turpin v. Sortini, 174 Cal. Rptr. 128 (Cal. App. 1981) (improper diagnosis of older child as having a hereditary total deafness abnormality).Google Scholar

See generally, Omenn, , Prenatal Diagnosis of Genetic Disorders, in Health Care: Regulation, Economics, Ethics, Practice (Abelson, P., ed. 1978) at 151. Omenn groups the technologies chronologically, so that his first four stages are subsumed under my stage 2 which is oriented toward techniques involving the fetus.Google Scholar

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Other examples include rare vitamin-responsive errors of metabolism, galactosemia, and renogenital syndrome and hypothyroidism. Id.Google Scholar

Marx, , Tracking Genes in Developing Mice, Science 215 (4528): 44, 47 (1982). Methods of gene manipulation may make possible the production of laboratory animal models that can be used to investigate human genetic diseases for which such models are now lacking. Mice having Lesch-Lyhan syndrome, a severe neurological condition caused by a single defective gene, or the thalassemias, which are anemias caused by defective globin genes, are two examples.Google ScholarPubMed

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These cases were developed from a personal communication with Dr. H.M. Hildebrandt of Ann Arbor, Michigan (April 6, 1982).Google Scholar

This difference was pointed out to me by Professor Leonard Glantz, whose comments substantially improved this paper.Google Scholar

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Turpin v. Sortini, 174 Cal. Rptr. 128 (Cal. App. 1981) [hereinafter referred to as Turpin ₁]; 182 Cal. Rptr. 337 (Cal. 1982) [hereinafter referred to as Turpin ₁].Google Scholar

Curlender is “unsound under established principles of law and as a sortie into areas of public policy clearly within the competence of the Legislature.” Turpin₁, supra note 17, at 129.Google Scholar

Turpin ₂, supra note 17.Google Scholar

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For a detailed set of arguments in support of these propositions, see Capron, , Tort Liability in Genetic Counseling, Columbia Law Review 79:618 (1979) at 648–49. Capron's article remains the best reasoned on the subject of wrongful birth and life suits.Google ScholarPubMed

See, e.g., Steinhauser v. Hertz Corp., 421 F.2d 1169 (2d Cir. 1970) where the claim was that an automobile accident had precipitated schizophrenia in the 14 year old plaintiff. Testimony in the case revealed that before the accident the plaintiff was “neither a ‘perfectly normal child’ nor a schizophrenic, but a child with some degree of pathology which was activated into schizophrenia by an emotional trauma although it otherwise might not have blossomed.” Id. at 1172 (emphasis in original). Judge Friendly, concluding that the issue precipitating the cause was for the jury to decide, stated: It is no answer that exact prediction of Cynthia's future apart from the accident is difficult or even impossible. However taxing such a problem may be for men who have devoted their lives to psychiatry, it is one for which a jury is ideally suited. Id. at 1174.Google Scholar

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This point is made in Schroeder v. Perkel, supra note 5, by both the majority and concurring opinion. The majority wrote: A family is woven of the fibers of life; if one strand is damaged, the whole structure may suffer. The filaments of family life, although individually spun, create a web of interconnected legal interests. Id. at 839.Google Scholar

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See L. Tribe, Channelling Technology Through Law (Bracton, Chicago) (1973) at 275–76. Such a description of the right suggests that the impaired child should have a cause of action against their parents if they choose not to be fully informed. This is a logical position, but one which raises serious questions of the slippery slope sort discussed in this article.Google Scholar

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The norms may be those of the professional group which is indirectly the target of the litigation, see Schuchman, , Ethics and Legal Ethics: The Propriety of the Canons as a Group Moral Code, George Washington Law Review 37:244 (1968); or norms of the larger society which the court is articulating, see Wellington, Common Law Rules and Constitutional Double Standards, Yale Law Journal 83:221, 248 (1978).Google Scholar

The parents' pain and suffering has been the only disputed issue in many of the cases which have allowed the wrongful birth cause of action. See Becker v. Schwartz, 386 N.E.2d 807 (N.Y. 1978).Google Scholar

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Damages may not be paid out in a lump sum in such cases but can rather be disbursed at regular intervals, in order to avoid the problem of overpayment if the child dies prematurely.Google Scholar

See, e.g., Kronick, , Community Responsibility for Accident Victims. Hastings Center Report 9(5): 11 (1979). See generally, Calabresi, supra note 62.Google ScholarPubMed

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This claim is most fully articulated by Judge Handler in his opinion in Schroeder v. Perkel, supra note 5, at 844.Google Scholar