Should wrongful birth lawsuits be permitted in Texas?

Those with disabilities speak to the Texas Senate (KXAN Photo)
Those with disabilities speak to the Texas Senate (KXAN Photo)

AUSTIN (KXAN) — Should parents of a severely disabled baby, who were never told of that disability before the birth, be able to sue the doctors because they might have considered an abortion instead? It is called wrongful birth suit, but a bill to ban such lawsuits was discussed Thursday by the state senate committee on health and human services, where the issue went right to the heart of quality and right to life.

Julia Burns told the committee, “I have Down Syndrome. I was born with it. I am also, as you can see, a person. Period.” As she spoke those powerful words, the committee appeared surrounded by spectators with disabilities, who believed perhaps, “there but for the grace of God I might have been aborted”. Twenty-eight states allow parents to sue if they weren’t told of an unborn’s disability. Nine states ban it. Texas has not yet spoken.

Dr. Joe Pojman, executive director of the Texas Alliance for Life says the issue is simple, “It sends a bad message that somehow a child born with disabilities is somehow less valuable than a child born healthy. That is not what we should be about.”

Melanie Kaiser of Round Rock has cared for her daughter Anna for fifteen years. She has a severe genetic disorder, a missing chromosome. Melanie says there is plenty of support available for parents to bear such a burden. With her primary insurance and a Medicaid waiver she only pays her normal premiums and deductibles. The rest of her burden is simply love. “To look at a living and breathing child and say had I known they had this I would have aborted… would a parent say that if the child had cancer? It could be applied to any difficult circumstance.”

Some see this as less a question about abortion than medical malpractice. Committee member Senator Donna Campbell says, “It puts the onus on a doctor for a genetic disability not a medical injury, and genetic defects are not equivalent.”

One interesting wrinkle to the issue is what about doctors who withhold the disability information from expectant parents because the doctors oppose abortion. No one knows if this issue will be a priority in the next session because of all the attention on school funding and transportation.

Many parents sue for wrongful birth and have collected tens of millions of dollars, an unknown number of cases are settled out of court. Taking a closer look, proponents of such suits say not being warned of possible birth defects robs them of the choice of whether to have the child anyway. They argue that medical negligence places an unfair burden on them going forward with the child.

Those who think such suits should be banned argue it will force cautious doctors into exaggerating over potential disabilities and they say inevitably that would lead to an increase in abortions. Incidentally, a child with a disability can also file a “wrongful life lawsuit”, arguing he or she would have been better off never being born.

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