Elements An example of the general elements of a wrongful birth claim, as established by the California Supreme Court, are: the existence of a patient–doctor relationship between the defendant and the plaintiff; the doctor negligently failed to disclose to the prospective parents the risk of having a child with a genetic or congenital disease; the plaintiff suffered harm; and the doctor ’ s negligence caused that harm.Turpin v. Sortini, 31 Cal.3d 220, 229-30 (1982) (citing Budd v. Nixen, 6 Cal.3d 195, 200 (1971)). Negligence In a wrongful birth case, the plaintiff must show that the doctor failed to follow the standard of care with respect the diagnosis or disclosure of the plaintiffs ’ risk of transmitting genetic or congenital abnormalities to their children. Harm The plaintiffs in a wrongful birth case may claim that their harms consist in having a child with an undesired abnormality, or in having been denied the opportunity to make a fully informed choice as to whether to conceive or to abort the fetus  Cause In the past, plaintiffs have had to prove cause by showing that if the defendant had not been negligent, the child would have been normal. Under this standard, the defendant may argue that even if she or he failed to diagnose an existing fetus with a genetic or developmental abnormality, she or he did not cause the parents or fetus to have mutated genes or the fetus to develop the abnormality. Once the fetus is determined to have an abnormality, the doctor may not be able to treat the fetus, making the abnormality inevitable. If the doctor fails to diagnose the plaintiff ’ s risk of transmitting a genetic disease, or fails to inform the plaintiff of that risk, then it is the combination of the parents ’ genetic mutations and choice to have a child that most directly results in the conception of an abnormal child. Because of difficulties in proving cause under this standard some courts disallowed wrongful birth suits. More recently, plaintiffs have been able to prove the causation element by showing that the defendant ’ s negligence deprived them of the opportunity to fully consider the choice whether or not to conceive or abort their fetus. However, the plaintiffs must still prove that had the doctor acted properly they would have declined to conceive or would have aborted their abnormal fetus. This standard for causation has allowed plaintiffs to more easily prove the causation element. Still, the plaintiffs ’ claim that they would not have had an abnormal child is in some ways speculative. The decision whether or not to conceive given the risk of bearing an abnormal child would likely to be difficult and emotional, with an unpredictable outcome, as would the decision to abort an abnormal fetus. Additionally, some defendants have argued that the tort is subject to fraudulent claims, as proof of the claim that the plaintiffs would have aborted an abnormal fetus would often come in the form of the plaintiff ’ s retrospective and subjective testimony. Damages Most courts now only allow only the costs associated with raising an abnormal child, such as medical care that would not be needed for a healthy child. Thus, most courts do not allow the recovery of all costs associated with raising the plaintiffs ’ child. Some courts have ruled that plaintiffs may recover additional damages, such as those for emotional distress, loss of consortium, and physical pain suffered by the wife during delivery of an unhealthy child. See the example of the Keel case below. On February 19, 1975  the Texas Supreme Court's ruling in the case Jacobs v. Theimer made Texas the first state in America to declare a woman could sue her doctor for a wrongful birth. That case involved Dortha Jean Jacobs (later Dortha Biggs), who caught rubella while pregnant and gave birth to Lesli, who was severely disabled. Dortha and her husband sued her doctor, saying he did not diagnose the rubella or warn them how it would affect the pregnancy. Example In the case of Keel v. Banach the plaintiffs were a man and his pregnant wife, who both sought to avoid having a child with genetic or developmental abnormalities. The man ’ s previous stillborn child had a spinal cord defect and other abnormalities known to have a hereditary basis, placing the man at increased risk of fathering a second child with such abnormalities. The defendant was an obstetrician who performed several sonograms on the woman and her developing fetus. The defendant did not detect any abnormalities and assured the parents that their child was developing normally. However, the child was born with a variety of severe congenital abnormalities, requiring multiple surgeries. The child died at the age of six. The parents sued on a theory of wrongful birth. The court ruled "the parents of a congenitally defective child may maintain an action for its wrongful birth if the birth was the result of the negligent failure of the attending physician to discover and inform them of the existence of fetal defects." The plaintiffs could recover for any medical expenses caused by the defendant ’ s negligence as well as for the physical pain of the wife, loss of consortium and mental and emotional suffering.
Elements An example of the general elements of a wrongful birth claim, as established by the California Supreme Court, are: the existence of a patient–doctor relationship between the defendant and the plaintiff; the doctor negligently failed to disclose to the prospective parents the risk of having a child with a genetic or congenital disease; the plaintiff suffered harm; and the doctor ' s negligence caused that harm.Turpin v. Sortini, 31 Cal.3d 220, 229-30 (1982) (citing Budd v. Nixen, 6 Cal.3d 195, 200 (1971)). Negligence In a wrongful birth case, the plaintiff must show that the doctor failed to follow the standard of care with respect the diagnosis or disclosure of the plaintiffs ' risk of transmitting genetic or congenital abnormalities to their children. Harm The plaintiffs in a wrongful birth case may claim that their harms consist in having a child with an undesired abnormality, or in having been denied the opportunity to make a fully informed choice as to whether to conceive or to abort the fetus . Cause In the past, plaintiffs have had to prove cause by showing that if the defendant had not been negligent, the child would have been normal. Under this standard, the defendant may argue that even if she or he failed to diagnose an existing fetus with a genetic or developmental abnormality, she or he did not cause the parents or fetus to have mutated genes or the fetus to develop the abnormality. Once the fetus is determined to have an abnormality, the doctor may not be able to treat the fetus, making the abnormality inevitable. If the doctor fails to diagnose the plaintiff ' s risk of transmitting a genetic disease, or fails to inform the plaintiff of that risk, then it is the combination of the parents ' genetic mutations and choice to have a child that most directly results in the conception of an abnormal child. Because of difficulties in proving cause under this standard some courts disallowed wrongful birth suits. More recently, plaintiffs have been able to prove the causation element by showing that the defendant ' s negligence deprived them of the opportunity to fully consider the choice whether or not to conceive or abort their fetus. However, the plaintiffs must still prove that had the doctor acted properly they would have declined to conceive or would have aborted their abnormal fetus. This standard for causation has allowed plaintiffs to more easily prove the causation element. Still, the plaintiffs ' claim that they would not have had an abnormal child is in some ways speculative. The decision whether or not to conceive given the risk of bearing an abnormal child would likely to be difficult and emotional, with an unpredictable outcome, as would the decision to abort an abnormal fetus. Additionally, some defendants have argued that the tort is subject to fraudulent claims, as proof of the claim that the plaintiffs would have aborted an abnormal fetus would often come in the form of the plaintiff ' s retrospective and subjective testimony. Damages Most courts now only allow only the costs associated with raising an abnormal child, such as medical care that would not be needed for a healthy child. Thus, most courts do not allow the recovery of all costs associated with raising the plaintiffs ' child. Some courts have ruled that plaintiffs may recover additional damages, such as those for emotional distress, loss of consortium, and physical pain suffered by the wife during delivery of an unhealthy child. See the example of the Keel case below. On February 19, 1975 , the Texas Supreme Court's ruling in the case Jacobs v. Theimer made Texas the first state in America to declare a woman could sue her doctor for a wrongful birth. That case involved Dortha Jean Jacobs (later Dortha Biggs), who caught rubella while pregnant and gave birth to Lesli, who was severely disabled. Dortha and her husband sued her doctor, saying he did not diagnose the rubella or warn them how it would affect the pregnancy. Example In the case of Keel v. Banach the plaintiffs were a man and his pregnant wife, who both sought to avoid having a child with genetic or developmental abnormalities. The man ' s previous stillborn child had a spinal cord defect and other abnormalities known to have a hereditary basis, placing the man at increased risk of fathering a second child with such abnormalities. The defendant was an obstetrician who performed several sonograms on the woman and her developing fetus. The defendant did not detect any abnormalities and assured the parents that their child was developing normally. However, the child was born with a variety of severe congenital abnormalities, requiring multiple surgeries. The child died at the age of six. The parents sued on a theory of wrongful birth. The court ruled "the parents of a congenitally defective child may maintain an action for its wrongful birth if the birth was the result of the negligent failure of the attending physician to discover and inform them of the existence of fetal defects." The plaintiffs could recover for any medical expenses caused by the defendant ' s negligence as well as for the physical pain of the wife, loss of consortium and mental and emotional suffering.
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