Berman v. Allan
1979 N.J. LEXIS 1247, 404 A.2d 8, 80 N.J. 421 (1979)
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Rule of Law:
A child with a birth defect does not have a legally cognizable claim for 'wrongful life' against physicians for negligent failure to inform parents of potential defects and diagnostic options. However, parents may assert a 'wrongful birth' claim against such physicians for the emotional distress suffered due to being deprived of the informed choice to terminate the pregnancy, but not for the ordinary costs of raising the child.
Facts:
- From February 19 until November 3, 1974, Mrs. Shirley Berman, while pregnant with her daughter Sharon, was under the care and supervision of Drs. Ronald Allan and Michael Attardi, who are specialists in gynecology and obstetrics.
- At the time of her pregnancy, Mrs. Berman was 38 years of age, which increased the risk of her child having certain genetic defects.
- On November 3, 1974, Sharon Berman was born afflicted with Down’s Syndrome, a genetic defect.
- Drs. Allan and Attardi allegedly failed to inform Mrs. Berman during her pregnancy about the existence and availability of amniocentesis, a procedure capable of detecting gross chromosomal defects like Down's Syndrome.
- Due to Mrs. Berman’s age, sound medical practice at the time required the defendants to inform her of the increased risk of Down's Syndrome and the availability of amniocentesis.
- The Bermans allege that had Mrs. Berman been informed, she would have undergone amniocentesis, discovered the Down’s Syndrome, and subsequently chosen to abort the fetus.
Procedural Posture:
- Paul and Shirley Berman, individually and as Guardians ad litem for their infant daughter Sharon, instituted a medical malpractice action against Drs. Ronald Allan and Michael Attardi.
- On November 4, 1977, the trial judge granted summary judgment in favor of the defendants, ruling that the plaintiffs had failed to state any actionable claim for relief, based on Gleitman v. Cosgrove.
- On December 22, 1977, the plaintiffs filed a notice of appeal to the Appellate Division.
- While the matter was pending before the Appellate Division, the Supreme Court of New Jersey directly certified the case to itself on its own motion.
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Issue:
1. Does a child born with a genetic defect have an actionable claim for 'wrongful life' against physicians who negligently failed to inform the mother of the risk and availability of diagnostic procedures, thereby preventing an abortion? 2. Do parents have an actionable claim for 'wrongful birth' against physicians who negligently failed to inform the mother of the risk of genetic defects and the availability of diagnostic procedures, and if so, what damages are recoverable?
Opinions:
Majority - Pashman, J.
No, Sharon has not suffered any damage cognizable at law by being brought into existence. The court affirmed the rejection of a "wrongful life" claim for the infant, reasoning that one of society's most deeply held beliefs is that life, whether handicapped or not, is more precious than non-life. It is humanly impossible to affix a price tag to non-life or to measure the difference in value between an impaired life and the "utter void of nonexistence." To rule otherwise would disavow a basic societal assumption that life itself is jealously safeguarded, not just life in a perfect state. Yes, Paul and Shirley Berman have stated actionable claims for relief for "wrongful birth," but with limitations on recoverable damages. The court held that public policy, especially in light of Roe v. Wade establishing a woman's constitutional right to choose abortion, now supports rather than opposes a cause of action for a physician's negligence depriving a mother of the opportunity to make a meaningful decision about aborting a fetus with genetic defects. Denying such a claim would effectively immunize negligent medical guidance. However, the parents cannot recover the medical and other costs of properly raising, educating, and supervising the child. The court found that allowing recovery for these expenses would permit the parents to retain all the benefits of the child's birth (love and joy) while burdening the defendants with enormous rearing costs, which would be disproportionate to the culpability, constitute a windfall to the parents, and place an unreasonable financial burden on physicians. Conversely, the parents can recover damages for the mental and emotional anguish they have suffered and will continue to suffer. The court reasoned that the defendants' negligence directly deprived Mrs. Berman (and derivatively, Mr. Berman) of the option to accept or reject a parental relationship, causing them mental and emotional distress. It noted that courts increasingly recognize mental and emotional distress as "real" and its valuation as feasible, and denying redress merely due to difficulty in measuring damages would be a "perversion of fundamental principles of justice."
Concurring in part and dissenting in part - Handler, J.
Justice Handler concurred with the majority's recognition of the parents' "wrongful birth" cause of action and their entitlement to damages for mental and emotional suffering. However, he advocated for a broader view of these damages, to include "impaired parenthood" or "parental capacity," recognizing the moral strife and diminished parental satisfaction caused by the wrongful denial of ethical choice and preparedness. Justice Handler dissented from the majority's denial of a cause of action for the infant. He argued that the child's claim is not based on a "wrongful life" in the sense of comparing life to non-existence. Instead, the child suffered a legally cognizable injury of a "diminished childhood" by being born to parents who were kept ignorant of her condition and thus were less prepared or fit to assume the unique responsibilities of raising a severely impaired child. He emphasized that the doctors owed a duty of reasonable care directly to the unborn child, and the breach of that duty, though not causing the defect itself, foreseeably undermined parental fitness and burdened the child with a diminished childhood. He believed such losses, though difficult to define and evaluate, are actual and compensable, and courts could prevent double recovery through careful jury instructions and awards.
Analysis:
This case significantly modified New Jersey's stance on "wrongful birth" claims, overturning parts of the precedent set by Gleitman v. Cosgrove. By recognizing the parents' right to recover for emotional distress due to a physician's negligence in genetic counseling, the court acknowledged the impact of Roe v. Wade on reproductive rights and expanded medical malpractice liability to include failures in informed consent regarding prenatal diagnosis. The decision, however, carefully distinguished between the child's rejected "wrongful life" claim and the parents' accepted "wrongful birth" claim, while also limiting parental damages to emotional suffering and excluding the substantial costs of raising a child with disabilities. This approach balances the need to hold physicians accountable for negligence with concerns about speculative damages, excessive financial burden, and the inherent value of life.
