Iowa Supreme Court recognizes claim for “wrongful birth”

Couple says they would have aborted if they knew child would be “disabled”

By Dave Andrusko

In a 6-1 ruling, the Iowa Supreme Court has overturned the dismissal of a suit that accused a doctor and others of failing to inform Pamela Plowman and her then husband Jeremy Plowman that their unborn son might be born with a birth defect. In so doing the state’s highest court recognized that the couple could sue for the “wrongful birth” of their child, now six, because they had been “denied the opportunity to make an informed choice whether to lawfully terminate a pregnancy in Iowa.”

The lawsuit seeks damages for mental anguish, cost of care past, present and future, and the loss of income after Mrs. Plowman needed to quit her job to take care of her son identified only as “Z.P.”

Justice Mansfield offered an eloquent and thoughtful dissent.

According to Heather Clark

The parents asserted in their complaint that when Plowman went for an ultrasound in her 22nd week (between five and six months), she was told by her OB/GYN that “everything was fine,” as the radiologist did not report that microcephaly—an abnormally small head circumference—had actually been detected. The radiologist rather reported the circumference as being “within two standard deviations of normal.”

The Plowmans consequently sued over the alleged failure to properly interpret, diagnose and communicate their child’s abnormalities as shown by the ultrasound. While the mother testified that she “really enjoy[s] spending time with [her son] and get[s] a lot of happiness from him,” the couple’s lawsuit also noted that she “would have terminated her pregnancy” had she known of her son’s conditions.

What about the impact on the child if/when he hears about his parents’ actions? The court majority had an answer for that:

“Defendants argue the disabled child may later be emotionally traumatized upon learning his or her parents would have chosen to abort. But given Z.P.’s severe cognitive disabilities, there is nothing in the record to indicate he will someday understand his parents sued over their lost opportunity to avoid his birth.”

Chief Justice Cady concurred in the majority opinion, desperately seeking a way out of the obvious bind–that damages could be recovered only if the child is “disabled.”

“Society would be better served if we proceed forward this tort by abandoning the inclination to distinguish people as either normal or disabled,” he intoned. Solution?

“Instead, damages under the tort should be recoverable when the extra financial burden of raising the child would be substantial enough to support a decision to terminate a pregnancy under prevailing community and medical standards.

But Justice Mansfield was having none of this. He dissented on three grounds: the cause of action does not exist at common law; Iowa’s statutes “foreclose this cause of action”; and “there are good public policy reasons not to recognize the claim.”

To focus on the latter, Justice Mansfield asked, in effect, “what’s enough?” and “where will this lead?”

Also relevant from a public policy perspective are the consequences of a particular ruling. … In my view, the court’s ruling leads to a slippery slope. True, today’s decision is limited to a “severely disabled child.” But the court does not define the term. What if testing indicates the child will be born blind or without a hand? Is that enough?

The court’s decision also opens up the possibility for other claims. Can a mother sue a father for not telling her that he carried a genetic disorder, on the theory that she would otherwise have had an abortion? Can a father sue a mother for not telling him she carried a genetic disorder, on the theory that he would not have had unprotected sex? Can a couple that relies on an outside sperm donor sue the source of that donation in tort?

Or suppose a physician recommends a potentially life-saving course of treatment for a seriously ill octogenarian whose adult children hold medical power of attorney. The children agree to the course of treatment, which prolongs the octogenarian’s life but doesn’t alleviate his misery. Instead, it drains the remaining assets of his estate. The majority opinion opens up the possibility that the children could sue for “wrongful prolonging of life.”

[The full opinion can be read at cdn.radioiowa.com/wp-content/uploads/2017/06/Baby-Medical-ruling-PDF.pdf.]

Nancy Penner, the attorney who represents Fort Madison Community Hospital and one of the doctors involved, said her clients were “obviously disappointed” but looking forward to defending themselves at trial,” the Associated Press reported.

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