Ban on Wrongful Birth Lawsuits

P.A. 423 of 2000
S.B. 1170 of 2000 – Sen. Bill Van Regenmorter
M.C.L. 600.2971

Current Status
Governor Engler signed S.B. 1170 into law on December 31, 2000. Beginning March 28, 2001, lawsuits will no longer be allowed under the premise of a “wrongful birth.” Likewise, the common law prohibiting “wrongful life”suits was codified into statute by S.B. 1170. Finally, the common law prohibiting parents from recovering the costs of raising a child under a “wrongful pregnancy”case was also incorporated into law.

“Wrongful Birth” lawsuits arise when parents of a disabled child sue a physician or other health care provider for failing to test for, or prenatally diagnose the child’s disability, information the parents claim would have led them to abort the child. A wrongful birth suit seeks to recover costs of raising the disabled child because the parents were ‘denied the opportunity’ to abort the child.

The effect of this bill is to create a policy barring wrongful birth suits, consistent with the Taylor decision and supplanting earlier court opinions. It further codifies existing court precedent on wrongful pregnancy suits that prohibit suing for costs of raising a child conceived via faulty contraception.

Wrongful birth, life, and pregnancy cases are all variations on traditional medical malpractice suits. With the advent of legal abortion, wrongful birth and wrongful life suits became theoretically possible because detecting disabilities prenatally and aborting the child was now a legal medical option. Several Michigan courts allowed wrongful birth suits, most recently in Blair v. Hutzel Hospital. But in 1999, a conflicting case, Taylor v. Kurapati argued wrongful birth suits should be prohibited. The Taylor court outlined the inherent discrimination against persons with disabilities that wrongful birth suits promote. Courts have always viewed the value of a child to his or her family to be outweighed by the costs of raising that child. Wrongful birth suits put a dollar value on the life of the child, essentially saying that the child’s worth or benefit to the family is less than the cost of raising the child. To bring this type of case into a public court denigrates the dignity of the child. The Taylor court directly requested that the Legislature end the prospect of wrongful birth suits by passing a law to prohibit them.

On March 16, 2000, Senator Bill Van Regenmorter introduced S.B. 1170, barring lawsuits for claims of a “wrongful birth.” These suits are brought by the parents of a disabled child against a physician who failed to test for or diagnose the disability prior to birth. The injury the parents claim is the physician denied them the opportunity to abortion the child, which they would have done had they known about the disability. They seek compensation for costs to raise the child to adulthood. On May 20, 2000, Representative Cameron Brown introduced a similar bill, H.B. 5718 barring wrongful birth suits, and codifying common law on wrongful life and wrongful pregnancy suits. A wrongful life suit is brought on behalf of the disabled child with the basic premise that the child “would have been better off never being born.” Michigan courts have never allowed these bizarre claims to come to trial. H.B. 5718 would specifically prohibit them by law. A wrongful pregnancy suit arises when a pregnancy results from an improperly performed sterilization surgery or improper administration of a contraceptive drug or device. Under common law costs for the pregnancy and birth can be recovered, but not costs for raising the child to adulthood. H.B. 5718 codifies that common law as well.

The Senate Judiciary Committee considered, amended and approved S.B. 1170 on May 16, 2000, incorporating the broader language of H.B. 5718 regarding wrongful life and pregnancy suits. The Senate approved S.B. 1170 by a 27-10 vote on June 1, 2000. The House Family & Civil Law Committee approved S.B. 1170 on November 30, 2000. The House gave final approval to the bill on December 5, 2000 by a vote of 66-33.