A wrongful birth case is not like a typical birth injury case. In a typical birth injury case, the parents are suing the doctor, hospital or other care provider for malpractice or negligence that resulted in an injury to their baby during labor or birth. A wrongful birth case, on the other hand, is where a doctor is sued for failure to warn parents of serious genetic or congenital conditions of the unborn child.
These cases aren’t all that common, as they can be difficult to win. In all types of birth injury and wrongful birth lawsuits, the money parents are seeking is to help them care for their disabled child, possibly for the rest of their lives. It can be expensive, both in terms of medical treatment and care, and in terms of time. One parent may have to forgo work to care for the child.
The reason wrongful birth lawsuits are different is because of what you need to prove in order to win. This is also why they can be controversial. Essentially, you must argue, and prove, that if you had known about the serious health condition you would have chosen to not go through with the pregnancy. So on top of proving that you were not properly informed (that the doctor breached the duty of care), you also have to argue that you would have chosen abortion had you been properly informed. It’s a difficult position to be in, but it comes down to caring for that child, who was born regardless of what might have happened.
A related type of case, which isn’t recognized in the United States, is a wrongful life lawsuit. This is a lawsuit by the person who was born (the child, or when they are an adult). They have to argue that they would have been better off had they not been born at all.
Wrongful birth and birth injury cases can be complex, and hiring an attorney who knows what they’re doing is key. There are Illinois law firms known for handling these cases and for their success in doing so.
Written by Michael Helfand