What is Wrongful Birth?  

by Patricia Woloch

In many cases, birth defects and/or genetic diseases can be identified early in the mother's pregnancy to allow the parents an opportunity to decide whether they want to allow the pregnancy to continue or whether they will have the pregnancy terminated through abortion. In some states, New Jersey included, if a birth defect or genetic disorder is not detected during pregnancy because of the medical professional's negligence, then a wrongful birth claim can be made.

Genetic disorders and diseases

It is common practice in the United States that obstetricians offer prenatal screening tests to their patients regardless of the patient's age or medical history. Blood tests during pregnancy can detect certain genetic disorders depending on whether or not either of the parents is at increased risk of being a carrier. These disorder or diseases include:

• Sickle cell disease (typically in African-Americans)
• Cystic fibrosis
• Canavans disease (typically in Jewish parents)
• Tay-Sachs disease
• Thallasemias

Down syndrome can be detected by an ultrasound examination that measures the clear space at the back of the neck. This ultrasound in combination with a blood test from the mother can help the obstetrician determine if further testing is necessary.

Proving wrongful birth

In order to pursue and win a valid wrongful birth claim, the medical malpractice attorney and clients must prove that the medical provider's negligence prevented them from realizing there was an increased risk that the fetus would suffer a genetic disorder or disease or a birth defect. The client must also establish that they would have terminated the pregnancy had they known about the defect or disorder during the pregnancy. These claims are referred to as "wrongful birth" claims because the child would not have been born if the obstetrician were not negligent.

In New Jersey, if a parent wins a wrongful birth suit, the negligence medical provider must provide monetary compensation related to the child's condition over the child's entire lifetime. Additionally, compensation must be provided for the emotional trauma (injury) and mental anguish suffered by the parents.