March 9, 2012 at 1:59 PM ET
Ariel and Deborah Levy are arguing in a Portland, Ore., courtroom that their 4-year-old daughter Kalanit should never have been born.
A jury just awarded the Levys $2.9 million for the "wrongful birth" of Kalanit, who has Down syndrome. According to a story in the Oregonian, the Levys, concerned about the risk of Down due to the mother’s age, sought prenatal testing. They maintain that the lab and doctors at Legacy Health Care’s Center for Maternal-Fetal Medicine in North Portland botched the test.
They say they would have terminated the pregnancy had they known what a properly conducted test could have told them -- their fetus would be born with Down’s. Now, they want $3 million to pay for the lifetime costs of care for their child.
The very fact that such a case can make it into a courtroom reveals a lot that is wrong with public policy and ethics in America.
The Levys are not alone in saying that they would not have had Kalanit. Studies show that more than 85 percent of parents who learn through prenatal testing that a fetus has Down terminate the pregnancy.
Wrongful birth lawsuits are rare. The tests are highly accurate and mistakes are uncommon.
If a test fails to detect a serious problem and the parents want to sue the lab, doctors or hospital, the parents have to go to court and argue in a public forum that they would not have had their child if they had known. They have to try and put a dollar value on the “harm” they feel they have suffered.
These are claims that very few parents are willing to make in the privacy of their own home, much less a courtroom.
Moreover, those bringing wrongful birth lawsuits have to do so knowing that their family and friends are watching and judging them.
They risk leaving their other children (the Levys have two sons) wondering if their parents really wanted them.
Wrongful birth lawsuits are a horrible way to deal with failed prenatal testing. Forcing parents to argue that their child never should have been born may make legal sense but it is morally absurd.
Why ask parents to reject the existence of their own child? Who can really put a value on a life that some argue in court ought not exist?
There is no reason to permit wrongful birth or wrongful life cases. When a mistake is alleged about genetic testing there ought to be some sort of no-fault insurance scheme under the supervision of neutral mediators, not a courtroom slugfest that demeans the value of a life with disability and reeks of eugenics.
The Portland case is rare, but cases like it may not be in the future. Simpler forms of prenatal testing that only require a test of the mother’s blood rather than today’s invasive procedures are just now becoming available. Rather than arguing about issues that will soon be made moot by technology and pharmacology, such as forcing pregnant women seeking surgical abortion to undergo transvaginal ultrasounds, maybe our politicians need to think about creating a legal and ethical framework that compensates for error without requiring the public devaluing of human life.
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