IN THE SUPREME COURT OF IOWA

No. 15–0974

Filed June 2, 2017

PAMELA PLOWMAN and JEREMY PLOWMAN,

Appellants,

vs.

FORT MADISON COMMUNITY HOSPITAL, PIL KANG, JOHN PAIVA, 

DAVIS RADIOLOGY, P.C., LEAH STEFFENSMEIER, THE WOMEN’S 

CENTER, and FORT MADISON PHYSICIANS AND SURGEONS,

Appellees.

Appeal from the Iowa District Court for Lee (North) County, 

John M. Wright, Judge. 

Parents of severely disabled child appeal summary judgment 

dismissing their wrongful-birth medical negligence action against 

physicians providing prenatal care. DISTRICT COURT SUMMARY 

JUDGMENT REVERSED AND CASE REMANDED. 

Wayne M. Willoughby of Gershon, Willoughby, Getz & Smith, LLC, 

Baltimore, Maryland, Darwin Bünger of Crowley, Bünger & Prill, 

Burlington, for appellants. 

Nancy J. Penner and Jennifer E. Rinden of Shuttleworth & 

Ingersoll, P.L.C., Cedar Rapids, for appellees Fort Madison Community 

Hospital, Leah Steffensmeier, The Women’s Center, and Fort Madison 

Physicians and Surgeons. 
2

Christine L. Conover and Carrie L. Thompson of Simmons, Perrine, 

Moyer, Bergman, PLC, Cedar Rapids, for appellees Pil Kang, John Paiva, 

and Davis Radiology, P.C. 
3

WATERMAN, Justice.

This appeal presents a question of first impression under Iowa law:

whether the parents of a child born with severe disabilities may bring a

medical negligence action based on the physicians’ failure to inform them 

of prenatal test results showing a congenital defect that would have led 

them to terminate the pregnancy. This is known as a wrongful-birth

claim. Other jurisdictions are divided as to the parents’ right to sue, 

with most states recognizing such claims. We previously held parents 

have no right to sue for wrongful pregnancy based on a medical mistake 

that led to the birth of a “normal, healthy child.” Nanke v. Napier, 346 

N.W.2d 520, 523 (Iowa 1984). 

The parents in this Iowa action allege the prenatal doctors failed to

inform them of abnormalities noted during an ultrasound. Their child 

was born with severe cognitive defects and remains unable to speak or 

walk at age five. The parents allege they would have chosen to terminate 

the pregnancy if they had been informed of what the ultrasound allegedly 

showed. They seek to recover for their ordinary and extraordinary costs 

of raising the child and for their loss of income and emotional distress. 

The district court granted the medical defendants’ motion for summary 

judgment on the grounds that Iowa has not recognized “wrongful birth”

as a cause of action. 

For the reasons explained below, we join the majority of courts to 

allow parents to sue for the wrongful birth of a severely disabled child. 

This theory fits within general tort principles for medical negligence 

actions. We reverse the district court’s summary judgment and remand 

the case to allow the parents’ wrongful-birth claims to proceed consistent 

with this opinion. 
4

I. Background Facts and Proceedings. 

The following facts are undisputed or set forth in the light most 

favorable to the plaintiffs. Pamela Plowman and Jeremy Plowman were 

married with two children, ages four and three, when Pamela became 

pregnant with their third child, Z.P., in late 2010. At the time, Pamela 

was employed at a retirement community working as a cook’s assistant. 

On January 18, 2011, Pamela began seeing Leah Steffensmeier, a 

physician specializing in obstetrics and gynecology, for her prenatal care 

at the Fort Madison Community Hospital (FMCH).1 

On April 25, approximately twenty-two weeks into her pregnancy, 

Pamela underwent an ultrasound at FMCH to assess fetal growth. 

Dr. Pil Kang, a radiologist employed by Davis Radiology, P.C., interpreted 

the results and prepared a report. Dr. John Paiva, another radiologist at 

that clinic, reviewed and signed the report. The report found that Z.P. 

displayed head abnormalities and recommended follow-up. Specifically, 

the report noted,

1) Suboptimal visualization of the head structure with 

cavum septum pellucidum not well seen. Recommend 

follow-up to document normal appearance. 

2) Single, live intrauterine pregnancy consistent with 22 

weeks 3 days by today’s scan. 

3) Slightly low head circumference to abnormal 

circumference ratio without definite etiology. Again, consider 

follow-up. 

The films of the ultrasound showed Dr. Kang took three measurements 

of the head circumference. Each indicated Z.P.’s head was abnormally 

small, less than the third-to-sixth percentile for his development. 

Dr. Kang did not report these findings. Rather, he reported the 

 1Dr. Steffensmeier worked at Fort Madison Physicians and Surgeons and The 

Women’s Center, located within FMCH. 
5

head/abdominal circumference of Z.P. was “within two standard 

deviations of normal,” with the head circumference/abdominal 

circumference ratio being “slightly” below normal. On May 11, Pamela 

met with Dr. Steffensmeier, who told her the ultrasound showed “[t]hat 

everything was fine” with the baby’s development. Pamela was never 

informed “that the radiologist had found any abnormalities, or that the 

ultrasound was in any way abnormal.” No further testing was done to 

follow up on the ultrasound results as recommended in the report. 

On August 17, Pamela delivered Z.P., a baby boy. The delivery was 

uneventful. About two months after birth, Pamela began to have 

concerns about Z.P.’s development. She noticed he “had bicycle 

movements, smacking of the tongue. He’d stare off a lot, he’d stiffen up.” 

At fourth months after birth, Z.P.’s pediatrician recommended Pamela

see a specialist in Iowa City, Iowa, for Z.P.’s care. Pamela began taking 

Z.P. to Iowa City for testing and treatment. Z.P. was diagnosed with 

small corpus callosum, which plaintiffs contend relates to the head 

circumference as shown in the ultrasound. Z.P. suffers from cerebral 

palsy, microcephaly, intellectual disability, cortical visual impairment, 

and seizure disorder. He requires frequent visits to numerous doctors in 

Iowa City and Keokuk. Physical therapists come to his home one to two 

times weekly. He is on daily medication for seizures and reflux. Doctors 

have been unable to determine the exact cause of Z.P.’s disabilities. It is 

unlikely Z.P. will ever walk or speak. 

On July 31, 2013, Pamela filed this lawsuit against FMCH, the 

Women’s Center, Fort Madison Physicians and Surgeons, Davis 

Radiology, P.C., and doctors Kang, Paiva, and Steffensmeier. She does 

not claim the defendants caused Z.P.’s disabilities; rather, she alleges the 

doctors negligently failed to accurately interpret, diagnose, monitor, 
6

respond to, and communicate the fetal abnormalities evident in the 

April 25, 2011 ultrasound. As a result of this negligent care, Pamela 

gave birth to Z.P., a child with severe brain abnormalities. If she had 

been informed of the abnormalities prior to birth, she “would have 

terminated her pregnancy.” The petition sought damages for (1) the cost 

of past, present, and future extraordinary care required for Z.P. as a 

result of his disabilities; (2) the cost of ordinary care raising the child;

(3) Pamela’s mental anguish; and (4) Pamela’s loss of income. Jeremy 

filed a separate action, mirroring Pamela’s claims. No claim has been 

made on behalf of Z.P.; rather, the parents sue for their own individual 

injuries and costs attributable to Z.P.’s disabilities. 

The defendants filed answers denying negligence and asserting the 

petitions failed to state a claim upon which relief could be granted. The 

radiologists also alleged plaintiffs could not prove causation because 

Z.P.’s injuries were caused by a preexisting medical condition. The 

district court consolidated the actions. 

Meanwhile, Pamela and Jeremy divorced in September of 2013. 

Jeremy and Pamela share physical custody of their children, including 

Z.P. Pamela lives with her new fiancé in Keokuk, Iowa. Pamela quit

working so she could attend Z.P.’s medical appointments. Z.P. does not 

walk or talk and is frequently sick; however, Pamela also noted that 

when he is not sick, he is “really happy” and “a good baby.” Pamela

testified she “really enjoy[s] spending time with [Z.P.] and get[s] a lot of 

happiness from him.” 

On September 11, the defendants filed a motion for summary 

judgment. The motion stated,

Plaintiffs do not assert that Defendants’ care and treatment 

caused [Z.P.’s] injuries. Instead, Plaintiffs allege that had 

“Mrs. Plowman [been] informed of her unborn child’s 
7

potential brain abnormality, Mrs. Plowman would have 

terminated her pregnancy and Plaintiff’s injuries would have 

been avoided.” This is a wrongful birth claim. 

Defendants argued that a cause of action for wrongful birth had not been 

recognized in Iowa; therefore, plaintiffs’ claims should be dismissed. 

Plaintiffs resisted the motion, arguing Iowa law did not preclude a 

wrongful-birth claim. 

On May 27, 2015, the district court granted the defendants’ motion 

for summary judgment. The court expressly declined to recognize a new 

cause of action for wrongful birth, stating a decision to do so was more 

properly left “to the legislature or the Supreme Court.” Plaintiffs 

appealed, and we retained the case. 

II. Standard of Review. 

“We review a district court ruling granting a motion for summary 

judgment for correction of errors at law.” Estate of Gray ex rel. Gray v. 

Baldi, 880 N.W.2d 451, 455 (Iowa 2016) (quoting Rathje v. Mercy Hosp., 

745 N.W.2d 443, 447 (Iowa 2008)). “Summary judgment is appropriate 

when there is no genuine issue of material fact and the moving party is 

entitled to judgment as a matter of law.” Barker v. Capotosto, 875 

N.W.2d 157, 161 (Iowa 2016) (quoting Amish Connection, Inc. v. State 

Farm Fire & Cas. Co., 861 N.W.2d 230, 235 (Iowa 2015)). “Summary 

judgment is appropriate if the only conflict concerns the legal 

consequences of undisputed facts.” Peppmeier v. Murphy, 708 N.W.2d 

57, 58 (Iowa 2005) (quoting Farmers Nat’l Bank of Winfield v. Winfield 

Implement Co., 702 N.W.2d 465, 466 (Iowa 2005)). “We . . . view the 

record in the light most favorable to the nonmoving party and will grant 

that party all reasonable inferences that can be drawn from the record.” 

Baldi, 880 N.W.2d at 455 (quoting Cawthorn v. Catholic Health Initiatives

Iowa Corp., 806 N.W.2d 282, 286 (Iowa 2011)).
8

“The moving party has the burden of showing the nonexistence” of 

a genuine issue of material fact. Nelson v. Lindaman, 867 N.W.2d 1, 6 

(Iowa 2015). “An issue of fact is ‘material’ only when the dispute involves 

facts which might affect the outcome of the suit, given the applicable 

governing law.” Id. (quoting Wallace v. Des Moines Indep. Cmty. Sch. Dist. 

Bd. of Dirs., 754 N.W.2d 854, 857 (Iowa 2008)). “An issue is ‘genuine’ if 

the evidence in the record ‘is such that a reasonable jury could return a 

verdict for the non-moving party.’ ” Id. (quoting Wallace, 754 N.W.2d at 

857). “Speculation is not sufficient to generate a genuine issue of fact.” 

Id. (quoting Hlubek v. Pelecky, 701 N.W.2d 93, 96 (Iowa 2005)). We also 

note,

Because resolution of issues of negligence and 

proximate cause turns on the reasonableness of the acts and 

conduct of the parties under all the facts and circumstances, 

actions for malpractice “are ordinarily not susceptible of 

summary adjudication.” 

Campbell v. Delbridge, 670 N.W.2d 108, 110 (Iowa 2003) (quoting Oswald 

v. LeGrand, 453 N.W.2d 634, 635 (Iowa 1990)). 

III. Analysis. 

The threshold question is whether Iowa law allows parents to sue

for wrongful birth. Defendants allege that the claim is a new cause of 

action unsupported by Iowa law. Plaintiffs, on the other hand, allege 

that this case falls within the traditional elements of medical negligence 

and note a clear majority of other jurisdictions allow parents to sue 

under these facts. We conclude that wrongful birth fits within common 

law tort principles governing medical negligence claims, and no public 

policy or statute precludes the cause of action. 

A. Wrongful-Birth Jurisprudence. We begin by defining terms.

Courts categorize three distinct types of claims. Nanke, 346 N.W.2d at
9

521. “Wrongful pregnancy” is a medical negligence action “brought by 

the parents of a healthy, but unplanned, child against a physician who 

negligently performed a sterilization or abortion.” Id. “Wrongful birth” is 

an action “brought by parents of a child born with birth defects.” Id. 

“Wrongful life” is a claim “brought by the child suffering from such birth 

defects.” Id. One court discussed use of the term “wrongful” as follows:

These labels are not instructive. Any “wrongfulness” lies not 

in the life, the birth, the conception, or the pregnancy, but in 

the negligence of the physician. The harm, if any, is not the 

birth itself but the effect of the defendant’s negligence on the 

parents’ physical, emotional, and financial well-being 

resulting from the denial to the parents of their right, as the 

case may be, to decide whether to bear a child or whether to 

bear a child with a genetic or other defect. 

Viccaro v. Milunsky, 551 N.E.2d 8, 9 n.3 (Mass. 1990); see also Wendy F. 

Hensel, The Disabling Impact of Wrongful Birth and Wrongful Life Actions, 

40 Harv. C.R.-C.L. L. Rev. 141, 164–67 (2005) (contrasting wrongfulbirth and wrongful-life actions); Mark Strasser, Yes, Virginia, There Can 

Be Wrongful Life: On Consistency, Public Policy, and the Birth-Related 

Torts, 4 Geo. J. Gender & L. 821, 824–28 (differentiating wrongfulpregnancy and wrongful-birth claims) [hereinafter Strasser]. 

In Nanke, we addressed whether parents could recover for 

wrongful pregnancy in Iowa after a failed abortion procedure led to the 

birth of a healthy child. 346 N.W.2d at 521 (“[T]he factual situation 

involved in this case would more accurately be depicted as a claim for 

‘wrongful pregnancy.’ ”). We held the parents could not recover, noting

“a parent cannot be said to have been damaged or injured by the birth 

and rearing of a normal, healthy child because the invaluable benefits of 

parenthood outweigh the mere monetary burdens as a matter of law.” Id. 

at 522–23. Nanke is distinguishable, as we expressly limited its holding 

to deny recovery for the costs of raising a “normal, healthy” child:
10

Our ruling today is limited to the unique facts of this 

case and the narrow issue presented. We hold only that the 

parent of a normal, healthy child may not maintain an action 

to recover the expenses of rearing that child from a physician 

whose alleged negligence in performing a therapeutic 

abortion permitted the birth of such child. 

Id. at 523 (emphasis added). We now address the separate question of 

whether parents of a child born with severe disabilities can sue for 

wrongful birth. 

In a wrongful-birth action, parents of a child born with a 

detectable birth defect allege that they would have avoided conception or 

terminated the pregnancy but for the physician’s negligent failure to 

inform them of the likelihood of the birth defect. Keel v. Banach, 624 

So. 2d 1022, 1024 (Ala. 1993). The injury to the parents results from the 

loss of the opportunity to make an informed decision about whether to

avoid or terminate the pregnancy. Garrison v. Med. Ctr. of Del., Inc., 581 

A.2d 288, 290 (Del. 1989). 

A majority of states recognize wrongful-birth claims. At least 

twenty-three states recognize the claim by judicial decision.2 Maine

 2See, e.g., Keel, 624 So. 2d at 1029; Turpin v. Sortini, 643 P.2d 954, 965 (Cal. 

1982) (en banc); Lininger ex rel. Lininger v. Eisenbaum, 764 P.2d 1202, 1208 (Colo. 

1988) (en banc); Rich v. Foye, 976 A.2d 819, 824 (Conn. Super. Ct. 2007); Garrison, 581 

A.2d at 291; Haymon v. Wilkerson, 535 A.2d 880, 884–85 (D.C. 1987); Kush v. Lloyd, 

616 So. 2d 415, 423–24 (Fla. 1992) (per curiam); Clark v. Children’s Mem’l Hosp., 955 

N.E.2d 1065, 1072 (Ill. 1987); Siemieniec v. Lutheran Gen. Hosp., 512 N.E.2d 691, 705–

06 (Ill. 1987), overruled in part by Clark, 955 N.E.2d at 1087; Bader v. Johnson, 732 

N.E.2d 1212, 1220 (Ind. 2000); Pitre v. Opelousas Gen. Hosp., 530 So. 2d 1151, 1163 

(La. 1988); Reed v. Campagnolo, 630 A.2d 1145, 1152 (Md. 1993); Viccaro, 551 N.E.2d 

at 11; Greco v. United States, 893 P.2d 345, 348 (Nev. 1995); Smith v. Cote, 513 A.2d 

341, 348 (N.H. 1986); Schroeder v. Perkel, 432 A.2d 834, 840 (N.J. 1981); Becker v. 

Schwartz, 386 N.E.2d 807, 813 (N.Y. 1978); Tomlinson v. Metro. Pediatrics, LLC, 366 

P.3d 370, 386 (Or. Ct. App. 2015), review granted, 2016 WL 6693689 (June 30, 2016);

Owens v. Foote, 773 S.W.2d 911, 913 (Tenn. 1989); Jacobs v. Theimer, 519 S.W.2d 846, 

849 (Tex. 1975); Naccash v. Burger, 290 S.E.2d 825, 830 (Va. 1982); Harbeson v. ParkeDavis, Inc., 656 P.2d 483, 488 (Wash. 1983) (en banc); James G. v. Caserta, 332 S.E.2d 

872, 882 (W. Va. 1985); Dumer v. St. Michael’s Hosp., 233 N.W.2d 372, 377 (Wis. 1975); 

see also Phillips v. United States, 508 F. Supp. 544, 551 (D.S.C. 1981) (stating 

South Carolina would recognize the action). 
11

allows wrongful-birth claims by statute.3 A minority of jurisdictions 

decline to do so. Three state supreme courts have refused to allow 

wrongful-birth claims.4 Twelve states have enacted legislation barring

wrongful-birth claims.5 Three of those states had allowed wrongful-birth

claims by judicial decision before the legislature barred them.6

“Two developments help explain the trend toward judicial 

acceptance of wrongful birth actions.” Smith v. Cote, 513 A.2d 341, 345 

(N.H. 1986). First, advancements in prenatal care have resulted in an 

“increased ability of health care professionals to predict and detect the 

presence of fetal defects.” Id. This raises the importance of genetic 

counseling for expecting parents. Id. Indeed, prenatal testing is 

“extremely prevalent and is widely accepted,” and “will likely become 

more common in the future.” Cailin Harris, Statutory Prohibitions on 

Wrongful Birth Claims & Their Dangerous Effects on Parents, 34 B.C. J.L.

 3Me. Rev. Stat. Ann. tit. 24, § 2931 (West, Westlaw current through ch. 1 of the 

2017 Reg. Sess.). 

4See, e.g., Atlanta Obstetrics & Gynecology Grp. v. Abelson, 398 S.E.2d 557, 563 

(Ga. 1990); Grubbs ex rel. Grubbs v. Barbourville Family Health Ctr., 120 S.W.3d 682, 

689 (Ky. 2003); Azzolino v. Dingfelder, 337 S.E.2d 528, 537 (N.C. 1985). 

5See Ariz. Rev. Stat. Ann. § 12-719 (Westlaw current through 2016 legislation); 

Idaho Code Ann. § 5-334 (West, Westlaw current through ch. 37 of 2017 1st Reg. Sess.); 

Kan. Stat. Ann. § 60-1906 (West, Westlaw current through laws enacted as of Jan. 18, 

2017); Mich. Comp. Laws Ann. § 600.2971 (West, Westlaw current through No. 563 of 

2016 Reg. Sess.); Minn. Stat. Ann. § 145.424 (West, Westlaw current through ch. 5 

2017 Reg. Sess.); Mo. Ann. Stat. § 188.130 (West, Westlaw current through 2016 Reg. 

Sess.); Mont. Code Ann. § 27-1-747 (West, Westlaw current through Feb. 20, 2017); 

Ohio Rev. Code Ann. § 2305.116 (West, Westlaw through 2016 Reg. Sess.); Okla. Stat. 

Ann. tit. 63, § 1-741.12 (West, Westlaw current through 2016 2d Sess.); 42 Pa. Stat. & 

Cons. Stat. Ann. § 8305 (West, Westlaw current through 2016 Reg. Sess.); S.D. Codified 

Laws § 21-55-2 (Westlaw current through Feb. 23, 2017); Utah Code Ann. § 78B-3-109 

(West, Westlaw current through 2016 4th Special Sess.). 

6See Blake v. Cruz, 698 P.2d 315, 320–21 (Idaho 1984), superseded by statute,

Idaho Code Ann. § 5-334; Arche v. United States, 798 P.2d 477, 480 (Kan. 1990), 

superseded by statute, Kan. Stat. Ann. § 60-1906; Speck v. Finegold, 439 A.2d 110, 

113–15 (Pa. 1981), superseded by statute, 42 Pa. Stat. & Cons. Stat. Ann. § 8305. 
12

& Soc. Just. 365, 370 (2014) (recognizing that the American Congress of 

Obstetricians and Gynecologists recommends doctors test all pregnant 

women for genetic abnormalities) [hereinafter Harris]. 

Second, Roe v. Wade and its progeny established as a matter of 

federal constitutional law that a woman has a right to choose whether to 

terminate her pregnancy free from state interference before the fetus is 

viable. 410 U.S. 113, 153, 93 S. Ct. 705, 727 (1973) (“This right of 

privacy . . . is broad enough to encompass a woman’s decision whether 

or not to terminate her pregnancy.”); Whole Woman’s Health v. 

Hellerstedt, 579 U.S. ___, ___, 136 S. Ct. 2292, 2318 (2016) (striking 

down Texas laws regulating abortion clinics that imposed undue burdens 

on the women’s right to choose to terminate pregnancy). As a result, 

today 

it is possible for prospective parents (1) to know, well in 

advance of birth, of the risk or presence of congenital defects 

in the fetus they have conceived; and (2) to decide to 

terminate the pregnancy on the basis of this knowledge. 

Cote, 513 A.2d at 346. Accordingly, courts have held physicians who 

perform prenatal care and testing “have an obligation to adhere to 

reasonable standards of professional performance.” Id. 

B. Wrongful Birth as a Cognizable Claim Under Iowa Law. 

Against this backdrop, we turn to whether Iowa law allows a cause of 

action for wrongful birth. In Dier v. Peters, we addressed whether Iowa 

tort law allows a cause of action for paternity fraud. 815 N.W.2d 1, 4

(Iowa 2012). We considered three factors to decide whether to recognize 

the right to sue: (1) whether the action is consistent with traditional 

concepts of common law, (2) whether there are prevailing policy reasons 

against recognizing such a cause of action, and (3) whether Iowa statutes 

speak to the issue. Id. at 3. Because paternity fraud fit within 
13

traditional notions of common law fraud and was not “contrary to a law 

or policy expressed by the general assembly,” we determined the father 

could maintain the claim. Id. at 13–14. We use the Dier three-factor test 

to decide whether to recognize a wrongful-birth claim. 

1. Whether a wrongful-birth claim is consistent with traditional 

concepts of common law. From our vantage point, a wrongful-birth claim

“fit[s] comfortably within the traditional boundaries of [negligence] law.”

See id. at 7. We join the majority of other jurisdictions in concluding 

wrongful-birth claims fall within existing medical negligence principles.

See, e.g., Lininger ex rel. Lininger v. Eisenbaum, 764 P.2d 1202, 1205 

(Colo. 1988) (en banc) (“Although courts and commentators often speak 

of wrongful life and wrongful birth as torts in themselves, it is more 

accurate to view these terms as describing the result of a physician’s 

negligence.”); Becker v. Schwartz, 386 N.E.2d 807, 811 (N.Y. 1978) 

(“Irrespective of the label coined, plaintiffs’ complaints sound essentially 

in negligence or medical malpractice.”); Owens v. Foote, 773 S.W.2d 911, 

913 (Tenn. 1989) (“[M]edical malpractice suits of this nature, brought by 

parents, alleging birth defects of an infant, are not unknown in this State 

and we see no reason to endeavor to fit them into some specific category 

beyond a suit for ordinary negligence.”); Naccash v. Burger, 290 S.E.2d 

825, 829 (Va. 1982) (“Whether a cause of action exists for the wrongs 

complained of and the damages sought . . . should be determined . . . 

according to traditional tort principles.”).

The traditional elements of a medical negligence action are (1) an 

applicable standard of care, (2) a violation of this standard, and (3) a 

causal relationship between the violation and injury sustained. Phillips 

v. Covenant Clinic, 625 N.W.2d 714, 718 (Iowa 2001). “A physician owes 

a duty to his patient to exercise the ordinary knowledge and skill of his 
14

or her profession in a reasonable and careful manner when undertaking 

the care and treatment of a patient.” J.A.H. ex rel. R.M.H. v. Wadle & 

Assocs., P.C., 589 N.W.2d 256, 260 (Iowa 1999). This duty is based on 

privity, arising from the contractual relationship between the two. Id. 

Although this contractual physician–patient relationship is sufficient to 

establish a duty, it is not required. Id. To establish a deviation from the 

standard of care, plaintiffs need to prove that a reasonably competent 

physician would have observed the abnormalities from the ultrasound or 

other procedure and reported the results to the parents. “Ordinarily, 

evidence of the applicable standard of care—and its breach—must be 

furnished by an expert.” Oswald, 453 N.W.2d at 635. As to causation, 

plaintiffs must prove if the procedure had not been performed negligently

or delayed and the parents had been timely informed of the impairment, 

they would have chosen to terminate the pregnancy. Finally, the 

resulting injury to the parents “lies in their being deprived of the 

opportunity to make an informed decision to terminate the pregnancy,

requiring them to incur extraordinary expenses in the care and 

education of their child afflicted with a genetic abnormality.” Garrison, 

581 A.2d at 290. 

Courts declining to allow wrongful-birth claim have questioned the 

elements of causation and injury. One judge who dissented from a 

decision allowing a wrongful-birth claim concluded the physician “cannot 

be said to have caused” the child’s genetic abnormality:

The disorder is genetic and not the result of any injury 

negligently inflicted by the doctor. In addition it is incurable 

and was incurable from the moment of conception. Thus the 

doctor’s alleged negligent failure to detect it during prenatal 

examination cannot be considered a cause of the condition 

by analogy to those cases in which the doctor has failed to 

make a timely diagnosis . . . . 
15

Becker, 386 N.E.2d at 816 (Wachtler, J., dissenting in part). By contrast, 

in traditional medical negligence actions seeking recovery for a child’s 

disabling injuries, the disability was allegedly inflicted by the defendant 

doctor. See, e.g., Asher v. OB-Gyn Specialists, P.C., 846 N.W.2d 492, 

494–95, 503 (Iowa 2014) (affirming jury verdict awarding damages to 

parents for their baby’s brachial plexis injury and broken clavicle caused 

by physician’s negligence during delivery), overruled on other grounds by 

Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 708 n.3 (Iowa 2016); Kilker 

ex rel. Kilker v. Mulry, 437 N.W.2d 1, 2 (Iowa Ct. App. 1988) (reviewing

appeal in case alleging child’s brain injury was caused by doctor’s 

negligence). 

Yet we have previously allowed patients to sue for a physician’s 

negligent failure to diagnose health problems the physician did not 

cause. In DeBurkarte v. Louvar, a physician failed to timely diagnose 

breast cancer. 393 N.W.2d 131, 133 (Iowa 1986). The defendant argued 

there was insufficient evidence to hold that “his failure to properly 

diagnose the cancer probably caused [the plaintiff’s] injuries.” Id. at 134. 

Although it was undisputed that the physician did not “cause” the 

plaintiff’s cancer, we allowed recovery for the plaintiff’s lost chance of 

survival. Id. at 137. We reasoned that the physician’s negligent failure 

to diagnose, in combination with the preexisting condition, increased the 

risk of harm to the plaintiff who otherwise could have obtained timely 

treatment. See id. at 135. Any other rule would “subvert[] the 

deter[r]ence objectives of tort law by denying recovery for the effects of 

conduct that causes statistically demonstrable losses.” Id. at 137

(quoting Joseph H. King Jr., Causation, Valuation, and Chance in 

Personal Injury Torts Involving Preexisting Conditions and Future 

Consequences, 90 Yale L.J. 1353, 1377 (1981)).
16

Causation “take[s] on a markedly more complex character . . . in 

those cases in which alleged negligence combines with a preexisting 

condition to cause the ultimate harm to the plaintiff.” Mead v. Adrian, 

670 N.W.2d 174, 182 (Iowa 2003) (Cady, J., concurring specially); see 

also Greco v. United States, 893 P.2d 345, 349 (Nev. 1995) (“Even though 

the physician did not cause the cancer, the physician can be held liable 

for damages resulting from the patient’s decreased opportunity to fight 

the cancer, and for the more extensive pain, suffering and medical 

treatment the patient must undergo by reason of the negligent 

diagnosis.”). Here, it is undisputed the physicians did not cause Z.P.’s 

birth defects. But the parents testified they would have terminated the 

pregnancy, and thereby avoided the costs of Z.P.’s disability, had the 

physicians informed them of the ultrasound results. 

Courts disallowing wrongful-birth claims reject the view “that the 

existence of a human life can constitute an injury cognizable at law.” 

Azzolino v. Dingfelder, 337 S.E.2d 528, 533–34 (N.C. 1985) (“[W]e are 

unwilling to say that life, even life with severe defects, may ever amount 

to a legal injury.”). We said as much in Nanke as to a healthy child. 346 

N.W.2d at 523 (“That a child can be considered an injury offends 

fundamental values attached to human life.” (quoting Cockrum v. 

Baumgartner, 447 N.E.2d 385, 388–89 (Ill. 1983))). However, under the

wrongful-birth theory, the relevant injury is not the resulting life, but the 

negligent deprivation of information important to the parents’ choice 

whether to terminate a pregnancy. Courts disallowing wrongful-birth

claims “conflate[] the claimants’ injury allegation with their ultimate 

claim for damages.” Grubbs ex rel. Grubbs v. Barbourville Family Health 

Ctr., P.S.C., 120 S.W.3d 682, 694–95 (Ky. 2003) (Keller, J., concurring in 
17

part and dissenting in part). A dissenting justice saw this “analytical 

flaw” in the majority’s rejection of a wrongful-birth theory:

[W]hile both the majority and concurring opinions attempt to 

frame the relevant issue . . . as whether [the child’s] life can 

constitute a legal injury in the context of a prima facie case 

for medical malpractice, “we need not find that ‘life, even life 

with severe defects,’ constitutes a legal injury in order to 

recognize the . . . claim for relief” because “[t]he resulting

injury to the plaintiff parents lies in their being deprived of 

the opportunity to make an informed decision to terminate 

the pregnancy[.]” . . . [A]lthough one facet of a plaintiff’s 

compensable damages in such cases may consist of 

extraordinary costs associated with the care and education 

of a child with birth-defect-related disabilities, those 

damages are available only because they are the result of a 

physician’s violation of the patient’s right to make an 

informed procreative decision[.]

Id. at 695 (some alterations in original) (footnote omitted) (first quoting 

Lininger, 764 P.2d at 1206; and then quoting Garrison, 581 A.2d at 290).

The compensable injury in a wrongful-birth claim is the parents’ 

loss of the opportunity to make an informed decision to terminate the 

pregnancy. This is analogous to a claim for medical negligence based on

lack of informed consent. Both types of claims arise out of “the 

unquestioned principle that absent extenuating circumstances a patient 

has the right to exercise control over his or her body by making an 

informed decision.” Pauscher v. Iowa Methodist Med. Ctr., 408 N.W.2d 

355, 358 (Iowa 1987). “The patient’s right to make an intelligent and 

informed decision cannot be exercised when information material to that 

decision is withheld.” Id. at 359–60. To make an informed decision 

regarding continuation of a pregnancy, “the patient has the right to 

expect the information reasonably necessary to that process will be made 

available by the physician.” Id. at 360. 

We are persuaded by the New Jersey Supreme Court’s analysis 

comparing informed-consent and wrongful-birth actions: 
18

In sum, the informed consent and wrongful birth 

causes of action are similar in that both require the 

physician to disclose those medically accepted risks that a 

reasonably prudent patient in the plaintiff’s position would 

deem material to her decision. What is or is not a medically 

accepted risk is informed by what the physician knows or 

ought to know of the patient’s history and condition. . . . In 

both causes of action, the plaintiff must prove not only that 

a reasonably prudent patient in her position, if apprised of 

all material risks, would have elected a different course of 

treatment or care. . . . [T]he test of proximate causation is 

satisfied by showing that an undisclosed fetal risk was 

material to a woman in her position; the risk materialized, 

was reasonably foreseeable and not remote in relation to the 

doctor’s negligence; and, had plaintiff known of that risk, she 

would have terminated her pregnancy.

Canesi ex rel. Canesi v. Wilson, 730 A.2d 805, 813 (N.J. 1999); see also 

Bader v. Johnson, 732 N.E.2d 1212, 1217 (Ind. 2000) (stating physician 

providing prenatal care has a duty to disclose “material facts relevant to 

the patient’s decision about treatment,” and while “discussion of this 

duty has generally arisen in cases involving informed consent and the 

doctrine of fraudulent concealment . . . , the underlying premise is still 

the same” (footnotes omitted)); Reed v. Campagnolo, 630 A.2d 1145, 1149 

(Md. 1993) (concluding that wrongful-birth cases “present a form of 

proximate cause reasoning that is analogous to that applied in informed 

consent cases”).

“[A]n action in tort for a negligently performed or delayed medical 

diagnostic procedure lies within the common law of negligence . . . .”

Garrison, 581 A.2d at 291. We decline to “compound[] or complicat[e] 

our medical malpractice jurisprudence by according this particular form 

of professional negligence action some special status apart from 

presently recognized medical malpractice.” Greco, 893 P.2d at 348. 

Without altering traditional rules of negligence, we acknowledge “a newly 

recognized compensable event to which those traditional rules apply.”

Mead, 670 N.W.2d at 178 (applying loss-of-chance doctrine to traditional 
19

principles of proximate cause). The parents have alleged “a wellrecognized civil wrong without contorting any of the elements to conform

to [the] facts.” Dier, 815 N.W.2d at 11 (allowing paternity-fraud claim to 

proceed because it met traditional elements of a fraud claim despite 

presenting an atypical fact pattern). We conclude that a claim for 

wrongful birth is consistent with traditional common law principles of 

medical negligence, and we move on to the second Dier factor. 

2. Whether there are prevailing policy reasons against recognizing 

such a cause of action. Defendants contend that recognition of a 

wrongful-birth action would contravene Iowa public policy. Public policy 

“is not predicated on this court’s ‘generalized concepts of fairness and 

justice.’ ” Id. at 12 (quoting Claude v. Guar. Nat’l Ins. Co., 679 N.W.2d 

659, 663 (Iowa 2004)). 

Rather, “[w]e must look to the Constitution, statutes, and 

judicial decisions of [this] state, to determine [our] public 

policy and that which is not prohibited by statute, 

condemned by judicial decision, nor contrary to the public 

morals contravenes no principle of public policy.” 

Id. (alterations in original) (quoting Claude, 679 N.W.2d at 663). 

In Nanke, we confronted whether the parents of a “normal, healthy 

child” could recover for costs associated with raising the child after a 

negligently performed abortion. 346 N.W.2d at 522–23. We concluded 

they could not because “the invaluable benefits of parenthood outweigh 

the mere monetary burdens as a matter of law.” Id. at 523. We stated, 

The bond of affection between a child and parent, the pride 

in the child’s achievement, and the comfort, counsel and 

society of a child are incalculable benefits, which should not 

be measured by some misplaced attempt to put a specific 

dollar value on a child’s life. 

Id. (quoting Beardsley v. Wierdsma, 650 P.2d 288, 293 (Wyo. 1982)). We 

also highlighted the “awkwardness that would inevitably surface under 
20

the application of the Restatement (Second) § 920 ‘benefits’ approach,” 

which offsets damages incurred by a benefit obtained. Id. We noted 

parents would have to show that they did not want the child and the 

child was of minimal value to them to minimize the offset. Id. We

refused to sanction this type of argument. Id. 

The defendants contend the same reasoning applies here. They 

argue a contrary holding would stigmatize the disabled community,

encourage abortions, increase the cost of prenatal care, and result in 

fraudulent claims. We are not persuaded those concerns warrant closing 

the courthouse door to parents harmed by medical negligence. 

First, we distinguish the policy concerns expressed in Nanke. In a 

wrongful-birth claim, the injury is not the resulting life of a healthy child

as in Nanke, but rather is the parent’s deprivation of information 

material to making an informed decision whether to terminate a 

pregnancy of a child likely to be born with severe disabilities. Our 

informed-consent caselaw rests on the patient’s right to exercise control 

in making personal medical decisions. See Pauscher, 408 N.W.2d at 358. 

Iowa Code section 147.137 (2017) codifies a presumption of informed 

consent when a patient receives in writing the risks “of death, brain 

damage, quadriplegia, paraplegia, the loss or loss of function of any 

organ or limb, or disfiguring scars associated with such procedure.” In

Pauscher, we relied on this statute in recognizing a legislative public 

policy favoring informed consent. 408 N.W.2d at 361. 

The legislature also has made a policy choice to help ensure a 

woman makes an informed decision whether to terminate or continue 

her pregnancy. Iowa Code section 146A.1(2) states that as a prerequisite 

to an abortion, a woman must be “provided information regarding the 

options relative to a pregnancy, including continuing the pregnancy to 
21

term and retaining parental rights following the child’s birth, continuing 

the pregnancy to term and placing the child up for adoption, and 

terminating the pregnancy.” (Emphasis added.);7 see also id. § 135L.2 

(establishing program for minors seeking an abortion to receive

information on decision whether to continue or terminate the pregnancy). 

To make an informed decision whether to proceed with the pregnancy, 

the woman must be informed of all material facts, including the 

likelihood the child will be born with a severe birth defect. 

Nanke relied in part on an offset rule. 346 N.W.2d at 523. Under 

the Restatement (Second) of Torts, 

[w]hen the defendant’s tortious conduct has caused harm to 

the plaintiff . . . and in so doing has conferred a special 

benefit to the interest of the plaintiff that was harmed, the 

value of the benefit conferred is considered in mitigation of 

damages . . . .

Restatement (Second) of Torts § 920, at 509 (Am. Law Inst. 1979).8 We 

noted in Nanke that a strict application of this rule to the ordinary costs 

of raising a normal, healthy child would require the parent to prove the 

child was of minimal value to them. 346 N.W.2d at 523. In contrast, the 

Lininger court pointed out that in wrongful-birth cases involving a 

severely disabled child, 

the extraordinary financial burden the [Plaintiffs] claim to 

have suffered, and will continue to suffer, is sufficiently 

 7Section 146A.1(1) also states that a woman must be given the opportunity to 

view an ultrasound of the fetus “as part of the standard of care.” The Iowa legislature 

recently revised Iowa Code section 146A.1 to provide that “[a] physician performing an 

abortion shall obtain written certification from the pregnant woman of all of the 

following at least seventy-two hours prior to performing an abortion:” an ultrasound 

viewing, description of the unborn child, hearing the heartbeat of the unborn child, and 

relevant information regarding pregnancy, adoption, and termination. S.F. 471, 87th 

G.A., 1st Sess. § 1 (Iowa 2017). 

8We find no such provision in the Restatement (Third) of Torts: Liability for 

Physical & Emotional Harm (Am. Law Inst. 2010 & 2012). 
22

unrelated to the pleasure they will derive from raising [the 

disabled child] as to preclude operation of the benefit rule, at 

least to the extent that it would require some offset against 

those particular damages.

764 P.2d at 1207. Imagine the case of a woman carrying a healthy fetus 

injured during the delivery because of a failure to diagnose a birthing 

issue, such as an umbilical cord wrapped around the neck. In that 

circumstance,

we would have no problem assessing damages. More 

importantly we would not even consider the theory that the 

joy of parenthood should offset the damages. Would anyone 

in their right mind suggest that where a healthy fetus is 

injured during delivery the joy of parenthood should offset 

the damages? There is no more joy in an abnormal fetus 

come to full term than a normal fetus permanently injured at 

delivery. Both are heartbreaking conditions that demand far 

more psychological and financial resources than those 

blessed with normal children can imagine. 

Atlanta Obstetrics & Gynecology Grp. v. Abelson, 398 S.E.2d 557, 565 

(Ga. 1990) (Smith, P.J., dissenting). Pamela testified she “really enjoy[s] 

spending time with [Z.P.] and get[s] a lot of happiness from him.” But 

“that pleasure will be derived in spite of, rather than because of, [the 

child’s] affliction.” Schroeder v. Perkel, 432 A.2d 834, 842 (N.J. 1981). 

We decline to monetize the joy of raising a severely disabled child to 

offset the costs of raising him.9

 9Other courts have reached the same conclusion that the concerns raised in 

Nanke do not preclude recovery for extraordinary costs of raising a disabled child. See

Strasser, 4 Geo. J. Gender & L. at 832 (collecting cases declining to award damages for 

raising a healthy child, but allowing wrongful-birth claims for extraordinary costs). For 

example, the Haymon court disallowed an action for wrongful pregnancy but allowed an 

action for wrongful birth. 535 A.2d at 884 (noting the rationale of a decision denying a 

wrongful-pregnancy claim was “misplaced in the context of [a] wrongful birth case” 

because “the claimed injury and the economic relief sought . . . are completely 

distinct”). In a wrongful-birth claim, parents seek extraordinary medical expenses due 

to their deprivation “of their right to make an informed decision whether to carry their 

child to term.” Id. By contrast, in wrongful-pregnancy and wrongful-life cases, “the 

injury was life itself.” Bader, 732 N.E.2d at 1219 (disallowing wrongful-life claim but 

allowing wrongful-birth claim). The law is not equipped to weigh the value of life versus 
23

Defendants argue that allowing wrongful-birth claims will

stigmatize the disabled community. That concern does not warrant

closing the courthouse door to these parents. “We fail to see how the 

parents’ recovery of extraordinary medical and educational expenses, so 

as to minimize the detrimental effect of the child’s impairment, is 

outweighed by any speculation about stigma that he might suffer.” 

Lininger, 764 P.2d at 1207; see also Turpin v. Sortini, 643 P.2d 954, 961–

62 (Cal. 1982) (en banc) (“[I]t is hard to see how an award of damages to 

a severely handicapped or suffering child would ‘disavow’ the value of life 

or in any way suggest that the child is not entitled to the full measure of 

legal and nonlegal rights and privileges accorded to all members of 

society.”). Parents make “the difficult decision to sue for wrongful birth 

because they want[] to recover costs in order to ensure that their [child] 

would have the best possible medical care.” Harris, 34 B.C. J.L. & Soc. 

Just. at 395. For example, damages from a wrongful-birth claim were 

used by one family to “pay for some of the expenses of raising their

[child], including prostheses, wheelchairs, operations, attendants, and 

other healthcare needs.” Id. 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. 

Defendants also contend that allowing a right to sue for wrongful 

birth will increase the cost of prenatal care by encouraging physicians to 

practice “defensive medicine” and that increased disclosure of risks will 

_________________________

nonlife, but with appropriate expert testimony juries are capable of calculating the 

extraordinary costs of raising a severely disabled child. See id. 
24

lead to more abortions. We disagree that these concerns justify closing 

the courthouse door.

A physician need not, indeed should not, advise a patient on 

whether to abort a child. A physician’s responsibility is 

simply to exercise due care to provide the information 

necessary for the patient to make an informed decision. If 

physicians do this, they need not fear a lawsuit if parents 

bear a child of one sex rather than the other, or even a child 

with congenital defects. The physician will not be liable for 

the patient’s informed decision on the abortion question. To 

deny . . . any remedy for a physician’s negligently 

withholding information or negligently providing 

misinformation so immunizes the physician as to encourage 

the physician himself, in effect, to make the abortion 

decision. 

Azzolino, 337 S.E.2d at 538 (Exum, J., dissenting). There are limitations 

on a physician’s liability for a failure to disclose, or a negligent 

disclosure, already inherent in the common law negligence standard. As 

in informed-consent cases, a physician will only be liable when he or she 

has failed to disclose a material fact relevant to the decision to continue 

or terminate the pregnancy. See Pauscher, 408 N.W.2d at 361–62 

(“Materiality may be said to be the significance a reasonable person, in 

what the physician knows or should know is his [or her] patient’s 

position, would attach to the disclosed risk or risks in deciding whether 

to submit . . . to surgery or treatment.” (alteration in original) (quoting 

Wilkinson v. Vesey, 295 A.2d 676, 689 (R.I. 1972))). The applicable 

standard of care represents another limitation: a physician will only be 

liable for failure to discover a risk if a physician of reasonable care and 

skill in good standing under like circumstances would have discovered it. 

See Bray v. Hill, 517 N.W.2d 223, 226 (Iowa Ct. App. 1994) (discussing

applicable standard). 

Finally, defendants argue that recognition of wrongful-birth claims 

will lead to fraudulent claims. The Missouri Supreme Court declined to 
25

allow lawsuits for wrongful birth, noting that “[i]n the wrongful birth

action, the right to recovery is based solely on the woman testifying, long 

after the fact and when it is in her financial interest to do so, that she 

would have chosen to abort if the physician had but told her” of the risk 

of genetic abnormality. Wilson v. Kuenzi, 751 S.W.2d 741, 745–46 (Mo. 

1988) (en banc). Although proof of causation will depend on a 

“counterfactual,” or what the plaintiffs would have done if they had been 

properly informed by their physicians, this is the standard of proof in 

every informed-consent case. Cote, 513 A.2d at 347; see also Pauscher, 

408 N.W.2d at 360 (stating one element of informed consent is proof that 

“[d]isclosure of the risk would have led a reasonable patient in plaintiff’s 

position to reject the medical procedure or choose a different course of 

treatment”). We favor placing trust in Iowa juries and our adversary 

system to root out fraudulent claims, rather than the alternative of 

closing the courthouse door to victimized parents with legitimate claims.

We must consider “the public policy implications of an opposite 

ruling.” Dier, 815 N.W.2d at 12. Declining to recognize a claim for 

wrongful birth would “immunize those in the medical field from liability 

for their performance in one particular area of medical malpractice,” 

namely, prenatal care and genetic counseling. Bader, 732 N.E.2d at 

1219–20 (quoting Garrison v. Foy, 486 N.E.2d 5, 8 (Ind. Ct. App. 1985)).

The defendants in this case have identified no other common law 

decision apart from Nanke in which we immunize physicians from 

liability for their negligence, and we decline to do so here.10 Conversely, 

 10The legislature has enacted certain statutory immunities for physicians that 

further other public policy goals, such as encouraging the reporting and investigation of 

child abuse complaints. See, e.g., Nelson, 867 N.W.2d at 9 (“We therefore construe the 

immunity provision in [Iowa Code] section 232.73 liberally to encourage 

communications between physicians and DHS child abuse investigators.”). 
26

recognition of wrongful-birth actions will encourage more accurate

prenatal testing. See Phillips v. United States, 508 F. Supp. 544, 551 

(D.S.C. 1981). Allowing recovery is also consistent with a goal of tort 

law—to compensate an injured party with damages in order to attempt to 

make them whole. See Wilson v. IBP, Inc., 589 N.W.2d 729, 732 (Iowa 

1999). On balance, we conclude public policy favors allowing wrongfulbirth actions. If the legislature disagrees with our decision, it is free to 

enact a statute precluding wrongful-birth claims. No such statute is 

currently on the books. 

3. Whether Iowa statutes speak to the issue. Turning to the last 

Dier factor, defendants argue Iowa should not recognize a wrongful-birth

claim because Iowa Code section 613.15A and Iowa Rule of Civil 

Procedure 1.206 limit parents’ ability to recover medical expenses for a 

child’s injuries. Iowa Code section 613.15A provides, 

A parent or the parents of a child may recover for the 

expense and actual loss of services, companionship, and 

society resulting from injury to or death of a minor child and 

may recover for the expense and actual loss of services, 

companionship, and society resulting from the death of an 

adult child.

Iowa Rule of Civil Procedure 1.206 states, “A parent or the parents, may 

sue for the expense and actual loss of services, companionship and 

society resulting from injury to or death of a minor child.”

Both Iowa Code section 613.15A and rule 1.206 by their plain 

language apply to parents seeking to recover expenses resulting from the 

“injury . . . of a minor child.” (Emphasis added.) To pursue a claim

under those provisions, a parent must establish that the child’s injury 

was wrongfully or negligently caused. “Actions brought under rule 

[1.206] are not for the injury to the child but for the injury to the [parent]

as a consequence of the injury to the child.” Wardlow v. City of Keokuk, 
27

190 N.W.2d 439, 443 (Iowa 1971) (emphasis added); accord Jones v. 

State Farm Mut. Auto. Ins. Co., 760 N.W.2d 186, 188 (Iowa 2008). “[T]he 

gist of a rule [1.206] action is ‘a wrong done to the parent in consequence 

of injury to his child by the actionable negligence of another.’ ” Dunn v. 

Rose Way, Inc., 333 N.W.2d 830, 832 (Iowa 1983) (emphasis added) 

(quoting Handeland v. Brown, 216 N.W.2d 574, 578 (Iowa 1974)). 

Here, as the defendants note, “there is no allegation that 

Defendants negligently caused [Z.P.’s] injuries.” There is no injury to the 

child; rather, the injury is to the parents—specifically their right to make 

an informed choice whether to continue or end a pregnancy. Rule 1.206 

and section 613.15A do not govern a wrongful-birth claim. We conclude 

the Iowa legislature has not statutorily barred wrongful-birth claims. 

The Iowa legislature, however, has by statute expressed its policy 

preference for medical informed-consent procedures and accurately 

informing a woman regarding her options for continuing or terminating a

pregnancy. See Iowa Code § 146A.1; id. § 147.137. Allowing a cause of 

action here furthers this legislative purpose without contravening section 

613.15A or rule 1.206. Thus, we conclude that an action for wrongfulbirth is cognizable under Iowa law.

The parents must prove the defendant’s negligence deprived them 

of the opportunity to lawfully terminate the pregnancy in Iowa. See id.

§ 707.7 (generally prohibiting abortions after the second trimester of the 

pregnancy with exceptions to preserve life or health of the mother);11

 11Section 707.7 provides in relevant part, 

1. Any person who intentionally terminates a human pregnancy, 

with the knowledge and voluntary consent of the pregnant person, after 

the end of the second trimester of the pregnancy where death of the fetus 

results commits feticide. Feticide is a class “C” felony. 

. . . . 
28

OB/GYN Specialists of Palm Beaches, P.A. v. Mejia, 134 So. 3d 1084, 

1087–88, 1091 (Fla. Dist. Ct. App. 2014) (requiring plaintiff in wrongfulbirth claim to prove she was deprived of the opportunity to lawfully 

obtain an abortion within the time permitted under the forum state’s law, 

regardless of the plaintiff’s ability to obtain a lawful late-term abortion in 

another state). We conclude Iowa public policy would not permit 

recovery for wrongful birth if the abortion in question would be illegal.12

To the contrary, the public policy codified in section 707.7 precludes 

such a recovery. The Plowmans’s claims arise from the allegedly 

misinterpreted ultrasound during the second trimester of Pamela’s 

pregnancy with Z.P. 

The right to sue for wrongful birth belongs to parents who were 

denied the opportunity to make an informed choice whether to lawfully

terminate a pregnancy in Iowa. It is not this court’s role to second-guess 

that intensely personal and difficult decision. Parents of children with 

disabilities may find their lives enriched by the challenges and joys they 

_________________________

4. This section shall not apply to the termination of a human 

pregnancy performed by a physician licensed in this state to practice 

medicine or surgery or osteopathic medicine or surgery when in the best 

clinical judgment of the physician the termination is performed to 

preserve the life or health of the pregnant person or of the fetus and 

every reasonable medical effort not inconsistent with preserving the life 

of the pregnant person is made to preserve the life of a viable fetus. 

Iowa Code § 707.7(1), (4). 

12The Iowa legislature recently enacted chapter 146B, which prohibits abortions 

after twenty weeks of fetal gestation other than cases of medical emergency. S.F. 471, 

87th G.A., 1st Sess. § 3 (Iowa 2017) (to be codified at Iowa Code § 146B.2(2)(a)). 

Nevertheless, the legislature clarified that the Act “shall not be interpreted to . . . 

prohibit abortion prior to an unborn child reaching a postfertilization age of twenty 

weeks.” Id. § 5. The legislation also allows a woman to maintain an action for actual 

damages against a physician who performs an abortion in violation of this chapter. Id.

§ 4 (to be codified at Iowa Code § 146B.3). The legislation was not made retroactive. 

See Iowa Code § 4.5 (“A statute is presumed to be prospective in its operation unless 

expressly made retrospective.”). 
29

confront daily. But under our tort law, financial compensation should be 

paid by the negligent physician if liability is proven. 

C. The Father’s Wrongful-Birth Claim. Jeremy, as the father of 

a profoundly disabled child, may be obligated to pay for his share of the 

child’s care for the rest of his life. See Iowa Code § 252A.3(3) (outlining 

dependent support obligations). Defendants nevertheless contend that 

Jeremy cannot bring a claim for wrongful birth because he had no 

physician–patient relationship with them. Pamela testified Jeremy may 

have attended “some” prenatal appointments with her, but the record 

does not disclose whether Jeremy attended her obstetrical ultrasound or 

to what extent Jeremy relied on what Pamela was told by the defendants.

Jeremy does not claim that he personally had a physician–patient

relationship with any defendant. 

Courts are divided as to whether physicians providing prenatal 

care owe a duty that extends to the father. Most courts specifically 

addressing the question have allowed the father’s wrongful-birth claim to 

proceed. See Khadim v. Lab. Corp. of Am., 838 F. Supp. 2d 448, 459–60 

(W.D. Va. 2011) (applying Virginia law and ruling that genetic testing lab 

owed duty to both parents); Keel, 624 So. 2d at 1030 (reinstating 

wrongful-birth claims of both parents and noting that defendants, by 

failing to inform mother of possibility of congenital birth defects, “directly 

deprived her and derivatively, her husband,” of the option to abort); 

Andalon v. Superior Ct., 208 Cal. Rptr. 899, 905 (Ct. App. 1984) (holding 

the father “is manifestly a direct beneficiary of tort-duty imposed by 

virtue of [his wife’s] doctor-patient relationship” with physician who failed 

to detect their child’s Down syndrome); Rich v. Foye, 976 A.2d 819, 830 

(Conn. Super. Ct. 2007) (rejecting defendants’ argument they owed no 

duty to father on wrongful-birth claims arising from interpretation of
30

fetal ultrasound); Chamberland v. Physicians for Women’s Health, LLC,

No. CV010164040S, 2006 WL 437553, at *7 (Conn. Super. Ct. Feb. 6, 

2006) (“The court also notes that most of the wrongful birth cases from 

other jurisdictions cited by both parties make no distinction between the 

duty owed to the mother and the father.”); DiNatale v. Lieberman, 409 

So. 2d 512, 513 (Fla. Dist. Ct. App. 1982) (noting the father “shares the 

legal obligation to provide for the child’s care and support [and his] right 

is not dependent upon the mother’s cause of action but is his 

individually”); Lab. Corp. of Am. v. Hood, 911 A.2d 841, 852 (Md. 2006) 

(answering certified question that genetic testing lab possibly owed duty 

to father dependent on fact-finding); Geler v. Akawie, 818 A.2d 402, 414 

(N.J. Super. Ct. App. Div. 2003) (requiring retrial of wrongful-birth claims 

by both parents arising from negligent genetic counseling); Estate of 

Amos v. Vanderbilt Univ., 62 S.W.3d 133, 138 (Tenn. 2001) (reinstating 

father’s jury award in wrongful-birth action for negligent transmission of 

HIV virus to mother leading to death of their child exposed in utero). But 

see Breyne v. Potter, 574 S.E.2d 916, 921 (Ga. Ct. App. 2002) (holding 

physician who misdiagnosed Down syndrome leading to abortion owed 

no duty to unmarried father who was not his patient); Molloy v. Meier, 

660 N.W.2d 444, 453 (Minn. Ct. App. 2003) (holding physician’s duty of 

care did not extend to patient’s husband who was not the biological 

father and never attended her prenatal appointments); Broadnax v. 

Gonzales, 809 N.E.2d 645, 649 n.3 (N.Y. 2004) (“The treating physician 

owes no duty of care to the expectant father.”); Krishnan v. Sepulveda, 

916 S.W.2d 478, 482 (Tex. 1995) (holding physician owed duty only to 

expectant mother, not the father); Fruiterman v. Granata, 668 S.E.2d 

127, 135–36 (Va. 2008) (holding father’s wrongful-birth claim failed 

because the defendant’s prenatal services were provided to the mother 
31

alone, not to the plaintiffs “as a couple”). Other courts allow the 

“parents” to bring claims for wrongful-birth without separately analyzing

the father’s right to recover.13

Although we have never addressed whether a physician providing 

prenatal care to the expectant mother owes a duty to the child’s father, 

we have addressed the duty of physicians to third parties in other 

contexts. “It is hornbook law that in any tort case the threshold question 

is whether the defendant owed a legal duty to the plaintiff.” J.A.H., 589 

N.W.2d at 258. “A legal duty ‘is defined by the relationship between 

individuals; it is a legal obligation imposed upon one individual for the 

benefit of another person or particularized class of persons.’ ” Id. 

(quoting Sankey v. Richenberger, 456 N.W.2d 206, 209 (Iowa 1990)). 

“Whether, under a given set of facts, such a duty exists is a question of 

law.” Id. (quoting Leonard v. State, 491 N.W.2d 508, 509 (Iowa 1992)). 

We generally look to three factors to determine whether a physician owed 

a duty to a nonpatient: “(1) the relationship between the parties,

(2) reasonable foreseeability of harm to the person who is injured, and 

 13See, e.g., Lininger, 764 P.2d at 1207 (“[T]he Liningers may prove and recover 

those extraordinary medical and education expenses occasioned by Pierce’s 

blindness.”); Garrison, 581 A.2d at 292 (“If the health care provider deprives the parents

of the ability to choose not to carry an unwell fetus to term, the provider may be held 

liable for the resulting extraordinary expenses of the parents for child care.” (Emphasis 

added.)); Siemieniec, 512 N.E.2d at 705 (agreeing with the majority of courts “that an 

action for the wrongful birth of a genetically or congenitally defective child may be 

maintained by the parents of such child” (emphasis added)); Viccaro, 551 N.E.2d at 11 

(“We agree with the general rule that the Viccaros are entitled to recover the 

extraordinary medical and educational expenses and other extraordinary costs 

associated with caring for Adam.”); Cote, 513 A.2d at 351 (“We already have held that a 

wrongful birth defendant is liable for the pecuniary losses incurred by the parents.” 

(Emphasis added.)); Harbeson, 656 P.2d at 488 (“The parents’ right to prevent a 

defective child and correlative duty flowing from that right is the heart of the wrongful 

birth action.” (Emphasis added.)); Caserta, 332 S.E.2d at 882 (“[P]arents may in a 

wrongful birth action recover the extraordinary costs for rearing a child with birth 

defects . . . .” (Emphasis added.)).
32

(3) public policy considerations.” Id. We now review how we have 

applied these factors to date and their application to wrongful-birth 

cases.

In Leonard, a state mental hospital discharged a patient, Henry 

Parrish, to outpatient care after treating him for bipolar disorder. 491 

N.W.2d at 510. Shortly after his release, Parrish returned to work and 

severely beat a coworker, John Leonard, without provocation. Id. 

Leonard sued the state. Id. Leonard did not know Parrish before his 

commitment and discharge, and Parrish’s psychiatrist had never heard 

Parrish make any threats against Leonard. Id. at 511. We held as a 

matter of law the treating psychiatrist owed no duty to Leonard as a 

member of the general public. Id. at 512. We concluded the “risks to the 

general public posed by the negligent release of dangerous mental 

patients would be far outweighed by the disservice to the general public if 

treating physicians were subject to civil liability for discharge decisions.”

Id. We worried that “the treating physicians would indulge every 

presumption in favor of further restraint, out of fear of being sued.” Id.

(quoting Sherrill v. Wilson, 653 N.W.2d 661, 664 (Mo. 1983) (en banc)). 

Similarly, in Schmidt v. Mahoney, we held a physician owed no 

duty to a motorist injured by his patient. 659 N.W.2d 552, 555 (Iowa 

2003). Dr. Mahoney treated a woman for a seizure disorder, but failed to 

warn her not to drive. Id. at 553. She suffered a seizure and lost control 

of her vehicle, colliding with Schmidt’s car. Id. Schmidt sued the doctor 

for negligence. Id. Id. We affirmed the district court’s ruling granting 

the doctor’s motion to dismiss. Id. at 556. As in Leonard, we declined on 

public policy grounds to extend the physician’s duty to members of the 

general public, fearing the resulting liability would adversely impact the 
33

physician–patient relationship through overly restrictive 

recommendations. Id. at 555. 

Leonard and Schmidt are distinguishable. Jeremy is not suing as a 

member of the general public, but rather, as the patient’s husband at the 

time of the prenatal care and birth and as the father of their child. This 

ameliorates the concern for open-ended liability. See Hood, 911 A.2d at 

852 (noting father’s wrongful-birth claim “would not risk an extension [of 

tort duty] to ‘an indeterminate class of people’ . . . but only to the father 

of the child who would be responsible for the child’s support”). Thus, we 

turn to our duty precedent in which the plaintiff had a close familial 

relationship with the medical defendant’s patient. 

In J.A.H., we addressed a physician’s duty to a son for negligent 

treatment of his mother by her therapist. 589 N.W.2d at 257. The son

alleged the therapist’s treatment caused his mother to develop false 

memories, damaging their parent–child relationship. Id. We observed 

that in medical negligence actions, a physician’s duty to the patient 

arises from their contractual relationship. Id. at 260. But we observed

that we had previously relaxed the privity requirement in professional

negligence actions, especially for negligent medical care, and stated “lack 

of privity is not necessarily determinative on the question of duty.” Id. at 

260–61. We recognized it was foreseeable that the son would be harmed 

by “the fallout of the negligent mental health care to his mother,” yet we 

did not base our decision on foreseeability. Id. at 261–62. Rather, we 

determined once again that public policy considerations precluded 

imposing a duty on therapists to nonpatient family members. Id. at 263. 

We noted the “problem of divided loyalties and the need to protect 

confidentiality.” Id. Specifically, we stated that “[p]reserving 

confidentiality in a mental health setting is probably more important 
34

than in any other type of medical setting.” Id. We echoed concerns that

a therapist might alter treatment to the patient’s detriment to avoid 

liability to third parties. Id.

Those public policy concerns are not present in a wrongful-birth 

action. We do not see that the mother’s prenatal care would be 

compromised, or patient confidentiality threatened, if physicians could 

be civilly liable for negligence to both the expectant mother and father. 

To the contrary, physicians providing prenatal care would have a greater 

incentive to improve fetal testing and disclosure to both parents if their 

liability for negligence extended to the father as well as the mother. 

We find particularly compelling the father’s joint legal obligation to 

support a disabled child. The physician–patient relationship is with the 

mother, not the father, but doctors providing prenatal care can easily 

foresee harm to both parents who must raise a profoundly disabled child.

Indeed, physicians who negligently injure a baby during delivery are 

already liable in tort to both parents. See Asher, 846 N.W.2d at 499 

(concluding that physician’s scope of liability for birth injury was 

established as a matter of law and affirming judgment on jury verdict 

awarding damages to both parents and child). 

Fathers also have a voice in reproductive decisions, although the 

ultimate decision to terminate a pregnancy belongs to the mother. 

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 898, 112 S. Ct. 

2791, 2831 (1992). The plaintiffs in this case were married at the time of 

the prenatal care and birth, and it is undisputed that Jeremy is Z.P.’s

father, with legal obligations to support his child. A husband has a 

“deep and proper concern and interest . . . in his wife’s pregnancy and in 

the growth and development of the fetus she is carrying.” Id. at 895, 112 

S. Ct. at 2830 (alteration in original) (quoting Planned Parenthood of 
35

Cent. Mo. v. Danforth, 428 U.S. 52, 69, 96 S. Ct. 2831, 2841 (1976)). 

Maryland’s highest court expressly rejected the argument that the 

woman’s sole right to choose to abort precluded recognizing her 

husband’s right to sue for wrongful-birth. Hood, 911 A.2d at 851 (noting 

that the plaintiffs, like many other married couples, would “jointly” 

decide whether to terminate a pregnancy); see also Andalon, 208

Cal. Rptr. at 905 (noting husband-father’s injury “flows from his role as a 

participant in the reproductive life of the marital couple and its lawful 

choices [and noting t]he burdens of parental responsibility fall directly on 

his shoulders” (footnote omitted)). Although the father has no legal right 

to compel or prevent an abortion, he does have an interest in 

participating in decisions regarding family planning.14

For these reasons, we hold that a father-husband such as Jeremy 

may bring a wrongful-birth claim under Iowa law, notwithstanding his 

lack of a physician–patient relationship with the defendants. 

D. Recoverable Damages in This Wrongful-Birth Action to Be 

Determined on Remand. The Plowmans seek damages for (1) their cost 

of ordinary care raising the child; (2) their cost of extraordinary care 

required for Z.P.’s life as a result of his disabilities; (3) their own pain, 

suffering, and mental anguish; and (4) their loss of income. They are not 

claiming any damages for loss of their child’s consortium or services or 

for Pamela’s labor and delivery of Z.P.

Because the district court granted defendants’ motion for summary 

judgment on liability, it did not decide which damage claims can be 

submitted to the jury. A supreme court is “a court of review, not of first 

 14The Iowa legislature has also allowed a father of a fetus upon whom a partialbirth abortion is performed to sue the physician. See Iowa Code § 707.8A(4)(a). 
36

view.” Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7, 125 S. Ct. 2113, 

2120 n.7 (2005). The defendants did not file motions for partial 

summary judgment on particular elements of damages. On this sparse 

appellate record, we decline to decide what damages are recoverable. On 

remand, the district court must determine which types of damages may 

be submitted to the jury under the factual record made by the parties. 

IV. Disposition. 

We reverse the district court’s summary judgment and remand the 

case for further proceedings consistent with this opinion. 

DISTRICT COURT SUMMARY JUDGMENT REVERSED AND

CASE REMANDED.

All justices concur except Cady, C.J., who concurs specially, and 

Mansfield, J., who dissents. 
37

#15–0974, Plowman v. Ft. Madison Cmty. Hosp.

CADY, Chief Justice (concurring specially).

I concur in the opinion of the court. The claim described in the 

case fits within the existing framework of a medical malpractice tort, and 

the alleged wrongful conduct gives rise to damages. However, the 

damages recoverable under the tort must not hinge on the distinction 

between a child perceived as “normal” and a child perceived as 

“disabled.” Such a distinction can be illusory and only risks 

unwarranted stereotypes and undeserved assumptions based on bias. 

See Anne Bloom, The Radiating Effects of Torts, 62 DePaul L. Rev. 229, 

242 (2013); Wendy F. Hensel, The Disabling Impact of Wrongful Birth and 

Wrongful Life Actions, 40 Harv. C.R.-C.L. L. Rev. 141, 144 (2005). Such a 

distinction must be discontinued. 

In Nanke v. Napier, we held a parent could not recover damages for 

a negligently performed abortion that resulted in the birth of a “normal, 

healthy child” because the benefits of parenthood exceeded the financial 

burdens associated with parenthood. 346 N.W.2d 520, 522 (Iowa 1984). 

In this case, we identify the injury claimed in Nanke as the birth of a 

healthy child when seeking to distinguish the injury here as the 

deprivation of a parent’s ability to make an informed decision to 

terminate pregnancy. In truth, the injury in both cases is the same. In 

both cases, parents are deprived of the outcome of the decision they 

either made or would have made if given the opportunity. Thus, the real 

distinction between Nanke and this case is the perception that the child 

in Nanke was born normal and the child in this case was born disabled. 

See Anne Bloom & Paul Steven Miller, Blindsight: How We See 

Disabilities in Tort Litigation, 86 Wash. L. Rev. 709, 719–20 (2011). This 

means these cases instruct that damages are recoverable under this tort 
38

only when the child is disabled. This holding implies that while the 

benefits of parenting “normal, healthy” children can outweigh the costs, 

the benefits of parenting a disabled child will not. 

Society would be better served if we proceed forward with this tort 

by abandoning the inclination to distinguish people as either normal or 

disabled. See Richard K. Scotch, Models of Disability and the Americans 

with Disabilities Act, 21 Berkeley J. Emp. & Lab. L. 213, 214–15 (2000). 

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. This standard does not impinge on the 

individual constitutional right to an abortion; it only permits damages 

associated with the decision when the extra expenses of parenthood 

would reasonably support the termination of a pregnancy. In this way, 

the reasonableness of the decision to terminate pregnancy will not hinge 

on identifying the child as disabled, but on the extra expenses associated 

with parenting the child. Those expenses describe the essence of the 

damages. Our law should in every instance seek to remove assumptions 

based on perceived differences in people. 
39

#15–0974, Plowman v. Ft. Madison Cmty. Hosp.

MANSFIELD, Justice (dissenting).

I respectfully dissent because I cannot agree that we should create 

a cause of action for “wrongful birth.”

Nothing compels us to establish a wrongful-birth cause of action. 

As plaintiffs’ very able counsel conceded at oral argument, Roe v. Wade, 

410 U.S. 113, 93 S. Ct. 705 (1973), does not require this result. There is 

no constitutional imperative here.

In my view, the court’s decision is incorrect for three reasons. 

First, this cause of action did not exist at common law and is contrary to 

traditional common law concepts. Second, Iowa statutes, specifically 

Iowa Rule of Civil Procedure 1.206, foreclose this cause of action. Third, 

there are good public policy reasons not to recognize the claim. See Dier 

v. Peters, 815 N.W.2d 1, 3 (Iowa 2012) (citing and applying these three 

factors in determining whether Iowa tort law allows an action for 

paternity fraud).

I. Common Law Precedents Do Not Support This Claim.

The common law does not support this cause of action. At 

common law, parents could not recover for the wrongful birth of a child. 

See Etkind v. Suarez, 519 S.E.2d 210, 214 (Ga. 1999); Hickman v. Grp. 

Health Plan, Inc., 396 N.W.2d 10, 13 (Minn. 1986); Wood v. Univ. of Utah 

Med. Ctr., 67 P.3d 436, 442 (Utah 2002). This was true even though 

abortion was not illegal at common law. See Abrams v. Foshee, 3 Iowa 

274, 278–80 (1856).

Furthermore, even if we were not constrained by Iowa statutes and 

could tinker with the common law in this area, there are good reasons 

not to do so. This is not a straight-and-simple case of medical 

malpractice, as the majority suggests. In general, a medical malpractice 
40

claim cannot be pursued in the absence of physical harm. See

Restatement (Third) of Torts: Liab. for Physical & Emotional Harm § 6, at 

67 (Am. Law Inst. 2010) (“An actor whose negligence is a factual cause of 

physical harm is subject to liability for any such harm within the scope 

of liability . . . .”).

Plaintiffs do not contend that the defendants’ actions caused 

physical harm to Z—but rather that Z’s birth as a severely disabled child 

has caused them economic and emotional harm. In the plaintiffs’ words,

A baby such as Z.P. is not the injury. The injury is 

that the parents were denied the right to make a deeply 

personal but informed decision whether to give birth to a 

potentially severely brain damaged child and willingly incur 

the foreseeable economic and emotional costs associated 

with caring for such a child.

I do not minimize the financial and personal burdens on the Plowmans of 

raising a severely disabled child. But this is not a typical medical 

malpractice claim.

It is true we have allowed medical malpractice claims to be 

pursued in the absence of physical injury when a breach of duty will 

“inevitably” result in mental anguish, pain and suffering. See Oswald v. 

LeGrand, 453 N.W.2d 634, 639–40 (Iowa 1990) (limiting the holding to “a 

combination of the two factors existing here: extremely rude behavior or 

crass insensitivity coupled with an unusual vulnerability on the part of 

the person receiving professional services”); see also Restatement (Third) 

of Torts: Liab. for Physical & Emotional Harm § 47(b) & cmt. f, at 175, 

179 (Am. Law Inst. 2012) (allowing recovery for serious emotional harm 

in the context of “specified categories of activities, undertakings, or 

relationships in which negligent conduct is especially likely to cause 

serious emotional harm” while noting that “the mere fact that serious 

emotional harm was foreseeable under the facts of the specific case” is 
41

insufficient). Yet even if one could argue for the Oswald exception here, 

plaintiffs’ lawsuit has clearly traveled some distance from a traditional 

medical malpractice claim.

My colleagues analogize the wrongful-birth claim to a failure-todiagnose or a failure-to-provide-informed-consent cause of action. These 

off-base comparisons do not advance the majority’s analysis. Under a 

failure-to-diagnose claim, the physician can be sued because his or her 

negligence has resulted in physical harm, or at least greater physical 

harm than would otherwise have occurred. See, e.g., Murtha v. Cahalan, 

745 N.W.2d 711, 716 (Iowa 2008) (“[T]he ‘injury’ is the development of 

the problem into a more serious condition which poses greater danger to 

the patient or which requires more extensive treatment.” (emphasis 

omitted) (quoting DeBoer v. Brown, 673 P.2d 912, 914 (Ariz. 1983) (en

banc))). Similarly, the informed-consent theory permits a physician to be 

sued only when inadequate disclosure of the risks of a “proposed medical 

procedure” results in “injury.” See Pauscher v. Iowa Methodist Med. Ctr., 

408 N.W.2d 355, 359–60 (Iowa 1987). Here, again, the alleged breach of 

duty has not caused physical harm.

II. This Claim Is Contrary to an Iowa Statute.

Furthermore, existing, longstanding Iowa legislation weighs against 

the creation of the wrongful-birth cause of action and, in my view, 

forecloses it. In 1860, our legislature enacted what is now Iowa Rule of 

Civil Procedure 1.206. See Iowa Code § 2792 (1860); see also id. § 4187 

(repealing in whole the 1851 Code of Civil Practice). The 1860 law 

provided,

A father, or in case of his death or imprisonment or desertion 

of his family, the mother, may prosecute as plaintiff an 

action for the expenses and actual loss of service resulting 

from injury or death of a minor child.
42

Iowa Code § 2792.

Other than amendments eliminating the preference for the father, 

this statute has remained basically unchanged for over 150 years.15 And 

until now, we have adhered to its limits. For example, in 1926, we did 

not let a father recover for the wrongful death of a thirteen-year-old son 

who had been emancipated. Lipovac v. Iowa Ry. & Light Co., 202 Iowa 

517, 522–23, 210 N.W. 573, 575–76 (1926). We explained that the father 

“must bring himself within [the statute’s] terms in order to be entitled to 

recover.” Id. at 519, 210 N.W. at 574 (recognizing that an action to 

recover under the statute “cannot be extended to cases omitted from its 

provisions or applied to those not fairly within its purview”). In 1971, we 

held that emotional distress damages were not recoverable because the 

statute was limited to “expense” and “loss of services.” See Wardlow v. 

City of Keokuk, 190 N.W.2d 439, 448 (Iowa 1971) (noting that recovery is 

“limited by the precise language of [the statute]”). We have also declined 

to allow parents to recover damages for injury or death of an adult child, 

reasoning, “The legislature has defined the remedies available for injury 

to or death of a person, and thus, any recovery is limited to those 

remedies provided by the legislature.” Kulish v. W. Side Unlimited Corp., 

545 N.W.2d 860, 862 (Iowa 1996); see also Kuta v. Newberg, 600 N.W.2d 

280, 287 (Iowa 1999) (denying recovery of consortium damages for an 

adult child under the statute even though “public policy might well 

support a different rule”).

 15In 1973, the legislature eliminated the paternal preference. See 1973 Iowa 

Acts ch. 316, at 660. Current Iowa Rule of Civil Procedure 1.206 provides, “A parent, or 

the parents, may sue for the expense and actual loss of services, companionship and 

society resulting from injury to or death of a minor child.” 
43

In Dunn v. Rose Way, Inc., we held that a father could recover 

under this statute for the death of a viable unborn child. 333 N.W.2d 

830, 833 (Iowa 1983). But we did so on the basis of close textual 

analysis of rule 1.206. We explained, “A minor person is simply one who 

has not yet reached majority, a category which certainly includes unborn 

persons.” Id.

Thus, to date, we have respected the boundaries of rule 1.206. 

Under this statute, parents cannot sue for emotional distress because 

the statute is limited to recovery of expenses and loss of services. 

Likewise, until the law was changed, parents could not sue for the injury 

or death of an adult child under rule 1.206 because it only referenced 

minor children.16 And while parents can sue for the death of an unborn 

child, this is only because we have concluded an unborn child fits within 

rule 1.206’s definition of a minor child.

Rule 1.206 thus controls a parent’s right to recover for tortious 

conduct affecting a minor child. See Wardlow, 190 N.W.2d at 443; see 

also Dunn, 333 N.W.2d at 833 (“What is involved here is a right of 

recovery given to a parent.”). And the statute limits recovery to 

circumstances when there is an “injury to” or the “death of” a minor 

child. No part of rule 1.206 authorizes recovery for a child’s birth. 

Consistent with our prior cases, we should continue to honor the 

legislative lines that rule 1.206 has drawn. Because the statute includes 

 16In 2007, the legislature enacted a new statute, which provided,

A parent or the parents of a child may recover for the expense 

and actual loss of services, companionship, and society resulting from 

injury to or death of a minor child and may recover for the expense and 

actual loss of services, companionship, and society resulting from the 

death of an adult child.

2007 Iowa Acts ch. 132, § 1 (codified at Iowa Code § 613.15A (2011)).
44

“injury” and “death” but not “birth,” parents may recover for an injury to 

a minor child or the death of a minor child, but not for the minor child’s 

birth. Otherwise, we would be rewriting the statute.

The court says that rule 1.206 does not “speak to” the wrongfulbirth cause of action because such a claim does not involve injury to the 

minor child. However, by the same logic, we could just as well have said 

that rule 1.206 does not “speak to” claims relating to adult children or 

claims for emotional distress damages. We didn’t. Under the 

interpretive canon expressio unius est exclusio alterius, the legislature’s 

decision to include recovery for “injury to” or “death of” a minor child 

also means it did not intend to include recovery for the birth of a child. 

See Homan v. Branstad, 887 N.W.2d 153, 166 (Iowa 2016) (“It is an 

established rule of statutory construction that ‘legislative intent is 

expressed by omission as well as by inclusion, and the express mention 

of one thing implies the exclusion of others not so mentioned.’ ” (quoting 

Marcus v. Young, 538 N.W.2d 285, 289 (Iowa 1995)). This rule of 

construction has special force here given that a wrongful-birth cause of 

action has no footing in traditional common law. 

III. Public Policy Considerations Should Also Defeat This 

Claim. 

Finally, there are valid public policy reasons not to recognize this 

claim. It goes without saying that a main source of public policy should 

be the enactments of the public’s representatives, namely the legislature. 

See Berry v. Liberty Holdings, Inc., 803 N.W.2d 106, 110–11 (Iowa 2011) 

(discussing public policy in the context of a wrongful-discharge claim). 

Unless a public policy is “clear and apparent,” “public policy is best left 

to our legislative branch of government to decide as representatives of 
45

the people.” Galloway v. State, 790 N.W.2d 252, 259 (Iowa 2010) 

(Cady, J., dissenting).

Bowing to this approach in part, the court cites recent informedconsent laws relating to abortion as reflective of legislative policy. 

However, the last time the Iowa legislature was actually free to set policy 

in this area predated Roe v. Wade. At that time the legislature made 

performing an abortion illegal, except to save the life of the mother. See 

Iowa Code § 701.1 (1973).17 An honest appraisal of the legislature’s Iowa 

Code section 146A.1 would find that it is intended to discourage, not 

encourage, abortions. The statute sets forth prerequisites for abortion 

only, not for carrying a pregnancy to term. See Iowa Code § 146A.1 

(2017). It requires some creativity to read section 146A.1 as support for 

the new cause of action the court establishes today.18 

 17The legislature first criminalized the performance of any abortion in 1859. See

1859 Iowa Acts ch. 58, § 1 (codified at Iowa Code § 4221 (1860)). Aside from 

renumbering and minor changes, the statute remained unchanged until it was 

substantially amended in 1977 following Roe v. Wade. See 1976 Iowa Acts ch. 1245, 

ch. 4, § 526 (repealing Iowa Code § 701.1 (1977)); id. ch. 1245, ch. 1, § 707 (enacting 

Iowa Code § 707.7 (1979)).

18Section 146A.1 is entitled “Prerequisites for an abortion,” and at the time of 

the alleged malpractice read as follows:

Except in the case of a medical emergency, as defined in section 

135L.1, for any woman, the physician shall certify both of the following 

before performing an abortion:

1. That the woman has been given the opportunity to view an 

ultrasound image of the fetus as part of the standard of care.

2. That the woman has been provided information regarding 

the options relative to a pregnancy, including continuing the 

pregnancy to term and retaining parental rights following the 

child’s birth, continuing the pregnancy to term and placing the 

child for adoption, and terminating the pregnancy.

Iowa Code § 146A.1. In the 2017 session, the legislature added more prerequisites for 

an abortion, including a seventy-two hour waiting period. See S.F. 471, 87th G.A., 1st 

Sess. § 1 (Iowa 2017) (to be codified at Iowa Code § 146A.1(1)).
46

Also relevant from a public policy perspective are the consequences 

of a particular ruling. See, e.g., Mulhern v. Catholic Health Initiatives, 

799 N.W.2d 104, 121–22 (Iowa 2011). 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.”

Another unanswered question is how one will select a jury in a 

wrongful-birth case. Many Iowans have deep-seated moral and religious 

objections to abortion, even if the unborn child has a severe disability. 

This raises the specter of a highly intrusive and uncomfortable voir dire, 

leading to the exclusion of a large swath of our population from the jury 

panel. See Thornhill v. Midwest Physician Ctr. of Orland Park, 787 N.E.2d 

247, 257 (Ill. App. Ct. 2003) (“The court excused 11 potential jurors 

based upon their opinions regarding abortion.”); Wuth ex rel. Kessler v. 
47

Lab. Corp. of Am., 359 P.3d 841, 852 (Wash. Ct. App. 2015) (“Jury 

selection began on October 21, 2013. On the Wuths’ motion, the trial 

court employed a written juror questionnaire and individual questioning 

of some prospective jurors to determine whether they were able to render 

an impartial verdict. The questionnaire asked whether the prospective 

jurors believed abortion is morally wrong or should be illegal, whether 

they had close contact with a disabled child, whether they had been a 

party to medical negligence lawsuit and whether they knew any of the 

parties. Jurors who responded affirmatively to any of the questions were 

brought in for individual questioning.”).

The best argument the court has for its ruling is that it provides 

greater motivation for physicians to provide more accurate diagnoses of 

conditions in unborn children. I agree that courts should take incentives 

into account in deciding cases, particularly under the common law. I 

also agree that traditional tort law works well and does a good job of 

internalizing the costs of negligent conduct. Yet I question whether the 

majority’s incentive is needed or beneficial here. In a typical medical 

malpractice case, the causation inquiry is a scientific one: Did the 

physician’s negligence cause the injury? Here, though, the causation 

inquiry is a human one: If the risks of a disability had been accurately 

disclosed, would the woman have terminated her pregnancy? Given the 

type of causation inquiry the factfinder must resolve, there is a 

possibility of overdeterrence. Although this matter is not part of the 

present appeal, it is a subject of disagreement among the parties, with 

the defendants pointing out that the plaintiff declined her physician’s 

offer of amniocentesis during a subsequent pregnancy.

I would have no problem with a potential breach of contract claim 

against a physician who contractually assumes a duty to provide a 
48

competent diagnosis of an unborn child’s condition. Parties are today 

free by private arrangement to allocate this responsibility. This could 

also avoid any question as to what course of action would have been 

taken and eliminate the possible overdeterrence problem I have 

mentioned in the preceding paragraph.

As the Kentucky Supreme Court noted when it rejected the 

wrongful-birth cause of action,

The Bogans believe that patients should have a breach of 

contract action against the physicians who offered and 

charged for diagnostic prenatal testing, yet who allegedly did 

not perform those services correctly. Despite our holding 

denying the tort claim as a matter of law, a physician who 

contracts and charges for a service, such as a prenatal 

ultrasound and consequent opinion as to the results of the 

ultrasound, is liable for any breach of contract in this 

regard.

Grubbs ex rel. Grubbs v. Barbourville Family Health Ctr., P.S.C., 120 

S.W.3d 682, 691 (Ky. 2003).

IV. Conclusion.

For all these reasons, I would affirm the grant of summary 

judgment and let the general assembly decide whether to authorize this 

cause of action.19 

 19The majority puts the shoe on the other foot, stating, “If the legislature 

disagrees with our decision, it is free to enact a statute precluding wrongful-birth 

claims.” This observation is undoubtedly true. In several states, legislatures have 

enacted statutes to overturn court decisions permitting wrongful-birth claims. See, e.g., 

Blake v. Cruz, 698 P.2d 315, 320–21 (Idaho 1984), superseded by statute, Idaho Code 

Ann. § 5-334(1) (West, Westlaw current through laws enacted as of Jan. 18, 2017), as 

recognized in Vanvooren v. Astin, 111 P.3d 125, 127–28 (Idaho 2005). However, I would 

not impose that burden on the Iowa General Assembly. In our system of government, it 

is the legislature’s job, not ours, generally to take the initiative on matters of public 

policy.