Wrongful Birth Cases

Amy and Jeff Clark were devastated in 1997 when they discovered that their newborn son, Brandon, had Angelman syndrome, which is marked by permanent intellectual and developmental disorders.  Those with t his condition generally are unable to speak, feed or bathe themselves and suffer from seizures, learning disorders and sleeping problems.  They require round-the-clock care.

Although Angelman syndrome is sometimes not initially diagnosed with chromosome testing, a UBE3A test can discover the mutation in chromosome 15 to diagnose whether the mother can pass the syndrome on to other children.  After seeing two geneticists, Dr. Paul Wong and Dr. Barbara Burton, The Clarks were assured that Brandon’s condition was not genetic.  The Clarks, who already had a girl who did not have the syndrome, decided to have a third child.

When their third child, Timothy, was born in 2002, he, too, began experiencing the same problems as Brandon and was diagnosed with the same condition.  Amy had said she would not have had another baby after Brandon if she had known she carried the genetic mutation that causes the syndrome.

The Chicago geneticists Amy consulted her at Baylor College of Medicine for a maternally transmitted genetic mutation.  After Timothy was born, it was only through the parents’ obtaining the UBE3A test results directly from Baylor that they discovered that Brandon’s condition was genetic and that Amy carried the mutation.

The two geneticists and Children’s Memorial Hospital that Amy consulted before conceiving Timothy had never followed through to get the genetic testing information from Baylor, and they did not inform the Clarks of their medical situation.

The Clarks brought an action for wrongful birth against the geneticists and Children’s Memorial Hospital, asking for the extraordinary cost of care for their second disabled child as a minor as well as for these costs after he reached majority.  They also pleaded negligent infliction of emotional distress.  One of the doctors settled, and the case continued against the others.  The trial court found that they were not entitled to either, but the appellate court reversed.  Clark v. children’s memorial Hospital, 391 Ill.App.3d 321, 907 N.E.2d 49 (1st Dist.2009).

The Illinois Supreme Court has recognized a claim for “wrongful birth” when a mother was deprived of making an informed decision about whether to abort the fetus.  Siemieniec v. Lutheran General Hospital, 117 Ill2d 23 (1987).  There, the mother became pregnant with a hemophiliac baby, a condition that she feared would occur because it was prevalent in her family.  She, too, sought genetic counseling and was assured there was a very low risk of that occurring with her baby.

The court noted the widespread judicial acceptance of the notion of “wrongful birth” on several rationales, including “that wrongful birth claims ‘vindicate the societal interest in reducing and preventing the incidence of [genetic] defects;’ that to refuse to recognize wrongful birth claims would ‘frustrate’ the policies of tort law to compensate the victim, deter negligence and encourage due care; and to refuse to recognize wrongful birth claims would ‘impermissibly burden the constitutional rights involved in conception, procreation and other familial decisions.’” Clark at 327, quoting Siemieniec, 117 Ill.2d at 257-58.

Illinois courts also have found, along with a majority of jurisdictions, that parents are allowed the recovery for extraordinary – medical, hospital, institutional, educational and other expenses “‘necessary to properly manage and treat the congenital or genetic disorder.’” Id., Siemieniec, 117 Ill.2d at 260.

In Clark the appellate court allowed the parents to seek damages for the cost of caring for Timothy beyond age 18.  The Clark court relied on Section 513(a)(1) of the Illinois Marriage and Dissolution of Marriage act.  The language demonstrates that “the legislature refused to foreclose all parental support for an un-emancipated, disabled child after the age of majority, but instead allowed the trial court to determine [damages] ‘as equity may require.’” Clark, at 329.  The court found that the legislature was “reluctan[t] to draw an arbitrary line at the age of majority in determining when support obligations for un-emancipated, disabled children must cease.”  Id.

Justice Michael Gallagher noted that the parents should have a right to allege and prove an action against the tortfeasors because otherwise it will fall to the taxpayers to ultimately provide care for the child’s lifelong needs.  “In short, if there is a tortfeasor, that person should bear the burden he, she or it caused rather than the parents or society.  If we are incorrect about our assumption regarding the state’s public policy, it will be remedied through the legal or political process,” Justice Gallagher wrote.

The court’s ruling recognizes the trend in wrongful birth cases involving genetic testing where damages are intended to prevent the emotional pain and suffering of a parent caused by raising a child with special needs.

The Illinois Supreme Court recently agreed to hear the case.  In accepting the defendant’s petition for leave to appeal, we will see how it views these important issues.