Wrongful Birth and Donors  

What Is Wrongful Birth?

Wrongful birth is refers to a claim that parents may have against parties who failed to inform the parents of potential or certain birth defects before the baby’s birth. The laws dictate that parents have a right to know about foreseeable birth defects so that they can make decisions in accordance with the best interest of the child. In some cases, this may mean that parents might choose to terminate the pregnancy, especially in cases where the child is anticipated to be born with painful conditions and/or a life expectancy of only a few hours. In other situations, a child may have a normal life expectancy but need significant additional care. Some families may need additional time and resources in order to prepare for a child who may need extra medical care throughout their life. Parents should be cautioned and think carefully before proceeding with a claim of this nature, as all legal cases are public record, and if there is a chance your child may someday find out you initiated legal action due to the mistake of their birth/being born with a defect, this may cause significant heartache.

The Reproductive Facility

Where this may become actionable against medical providers is most often when some part of the embryo comes from or is screened by a reproductive facility- either the egg or the sperm that contributes to the genetic makeup of the child. Frequently, potential parents who may be carriers for a genetic disease, may use the services of a reproductive facility in order to have their genetic material screened to ensure they are not passing that problematic gene on to their children. This can be a very costly and expensive procedure and can also be a basis for filing suit if that genetic condition was not removed and was in fact passed on to their child after birth. Another option is when couples use a reproductive facility to obtain sperm or an egg from a donor. If that is the case, the facility may restrict individuals that are carriers for certain conditions as being ineligible to donate.  Further, if individuals with potential genetic conditions are permitted to donate, the prospective parents must be informed of those conditions prior to utilizing the egg or sperm from that donor. Most reputable clinics require donors to submit to a genetic screening and complete self-reported family history. Since sperm can carry infectious diseases such as HIV and hepatitis, facilities generally have an obligation to conduct tests in order to ensure that the samples they’re using do not carry diseases. Additionally, most clinics refuse to accept donations from people who have a history of substance abuse, specifically intravenous substances.

The Donor

The donor themselves can be liable in some cases. As previously mentioned, donors are typically required to submit to genetic screenings in order to ensure that they do not have any conditions that they could pass on to biological offspring. However, these tests cannot test for every genetic condition under the sun, especially when it comes to rare genetic conditions. If you’re a donor, and you know, or reasonably should know, that there is a genetic condition that runs in your family, you likely have a duty to disclose that when you’re applying to donate sperm or eggs—and this may be true even if the facility does not directly ask you whether anyone in your family has that specific condition.

The Recipient

Sometimes, people already have a donor in mind, generally a family friend or a relative of their spouse. In these cases, the recipient of the donation may have a higher-than-normal duty of care to investigate the person’s genetic background. For example, if you have decided that you want to use a family friend as a donor for your child, but you know that dwarfism runs in their family, you would not likely be able to file a claim if your child ended up inheriting the genetic condition. This is because dwarfism is well-known to be a genetic condition, and you likely would have known that it ran in your friend’s family, simply by knowing their family.

Medical Professionals

Despite all the rigorous testing and assessments, unforeseeable events do happen. A fetus can still develop a birth defect even though all the tests came back with good news. Medical professionals who are assisting pregnant women generally have a duty to inform pregnant women when they have a reason to believe the baby could be born with a birth defect or condition. Not all abnormalities are able to be foreseen—after all, your doctor usually has no way of telling if your child is going to be born with a birth mark and thus is not legally obligated to inform you of that. However, if your doctor should have foreseen a possible abnormality, they generally have a duty to order tests to confirm their suspicions and/or inform the parents of the possibility.

If You Think You Have a Claim…

If you are considering filing a wrongful birth claim, Moxie Law Group is here for you. Contact us today for a free consultation.