Breeder-centrism in tort law


In recent years there has developed a jurisprudence around so-called wrongful life suits, sometimes referred to as wrongful birth suits. These suits are a species of medical malpractice, and involve suing a doctor who improperly performs a sterilization, be it a vasectomy, tubal ligation, or whatnot. The action has been recognized by most states, and I don't believe any state has explicitly refused to recognize it. At trial everything is very similar to medical malpractice, the procedure is discussed, experts are brought in, negligence is argued over, and, if the jury finds for the plaintiff, damages are assessed.

The damages are where things get tricky. Now, if the plaintiff has an abortion, things are pretty pat. They generally get compensation for the cost of the initial sterilization, cost of another sterilization, cost of having the abortion, and any related medical bills and lost wages. There might, perhaps, also be emotional damages. Things get more expensive if the plaintiff decides to have the baby, then put it up for adoption. There, in addition to the above costs, the doctor (or his insurance company) generally has to pay all the expenses related to the pregnancy, including considerably more lost wages. Still, though, nothing particularly controversial.

What happens, though, if the plaintiff decides to keep the baby? The question, then, is to what extent the doctor should be held liable for the cost of rearing the child. This is, after all, a baby that plaintiff did not want, and would not exist but for the doctor's negligence. The rule of thumb for torts is that plaintiff should be "made whole," that is, plaintiff should be put financially back in the same situation they would have been in had the accident never occurred. Kids are expensive. In order to put plaintiff in as good a situation as they would have been in had the sterilization been successful, it follows that the doctor ought to pay the entire cost of rearing the child.

That, of course, is a cursory application of general tort principles to the case. Courts in practice find a great many ways to apply these principles to the facts of a case. Often courts are asked to decide which are legitimate, compensable damages and which damages it is unreasonable to expect defendants to pay. In this case, most jurisdictions (31 as of 1997) don't consider child rearing costs to be compensable. Two jurisdictions (New Mexico and Wisconsin) do allow child rearing costs.

There are several reasons given by the jurisdictions that don't allow child rearing costs. The first is that the costs are too vague to assess. Who know how much it would actually cost to rear this child, and whether the money would actually be put to that purpose? It's far too indefinite, too expensive, and too long term. Further, the cost would be far too heavy a burden for the poor doctor to bear, just for one little mistake (Courts are quite fond of the sob-story. They are only persuasive until you realize that inherently in a court case you are deciding which of two parties should bear a huge loss. The poor doctor could not stand to bear the financial burden of raising this child! It therefore follows that the mother ought to bear the financial burden instead). The less-objectionable policy argument is that if you make potential damages too high, doctors will simply refuse to perform these operations out of fear of botching them, and the cost of performing these operations will skyrocket.

There are a couple of other arguments deployed by these courts. One is that the plaintiff assumed the cost of rearing the child when she decided not to abort the child or give it up for adoption. This facile argument handily ignores the moral dimension of those two alternatives. Abortion is obviously a sticky issue for a lot of people, and once you've decided not to abort the child, adoption isn't without its own problems. The pregnant party is between Scylla and Charybdis and the court is arguing that choosing one indicates the party prefers and accepts that option. They ignore the fact that the entire point of having the operation was to not have to make that choice in the first place.

The other argument ties into the ambiguity of the costs argument. Sure, we don't know exactly how much it costs to rear a child, but we do know it costs something. How do you go from there to the conclusion that we should not award any child rearing costs? Enter the Bundle of Joy argument. The courts argue that there is an indisputable joy in having and raising a child. The plaintiff is looking to benefit from this joy without paying the attendant costs. Therefore, to get a fair assessment of the plaintiff's damages, we must balance the cost of raising the child against the joy the parents derive from that child. Since it's so hard to measure these things, the courts decide to call it even and leave the damages at 0.

It hardly bears pointing out that this argument is intensely patronizing. It ignores the fact that the plaintiff was sterilized precisely to avoid having a child. They could have any number of reasons for doing so. Maybe they can't afford a child, or maybe, heaven forbid, they just don't like kids. Moreover, sterilization operations aren't exactly something you do on a whim. The plaintiff carefully examined their situation and decided the costs of having a kid outweighed the benefits, and decided to pay for an expensive surgery to prevent it ever happening. The court looks at this and says, "Awww, you didn't REALLY mean that. Everyone loves kids! Now go have fun with your new bundle of joy!"

What's even more insulting, however, are the three jurisdictions, and I don't know which states these are, that actually include the Bundle of Joy factor as a weight against other costs. That is, you get all the aforementioned medical costs, and then the court determines how much joy they think the baby will give you, attaches a dollar value, and subtracts it from those costs.

I don't know precisely where I stand on the issue, but I think that there should at least be a monthly child support-like payment attached to the costs. It need not be the whole cost of rearing a child, but I definitely think that, if the plaintiff does decide to keep the kid, the negligent doctor should be on the hook to pay at least part of the cost of rearing the child.


For the record, the delay in my response to this is due not to being uninterested in it, but to having a hell of time figuring out where exactly I stand on it.

I mean, that and spending all of my free time yesterday baking a birthday snake instead of surfing the internet.

It's a very tricky issue. I have my own thoughts, but I'm curious to hear what others think before I elaborate beyond my general conclusion in my last paragraph.

Also: Mmmm, birthday snake. The closest I've come in that regard was baking a german chocolate cake for my roommate a couple of years ago. I think I deleted any pictures of it long ago, though.

A...a birthday snake?

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This page contains a single entry by Zach published on October 11, 2005 7:04 PM.

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