Hummel v. Reiss
129 N.J. 118, 608 A.2d 1341, 1992 N.J. LEXIS 410 (1992)
Rule of Law:
A cause of action for wrongful life cannot be maintained by a child born with birth defects prior to Roe v. Wade, because the legal right to a eugenic abortion did not exist at that time, and a physician's duty regarding therapeutic abortions was owed solely to the mother's health, not to the child to prevent its birth.
Facts:
- In 1971, Judy Hummel was pregnant and suffered a ruptured amniotic sac followed by a severe intrauterine infection.
- She delivered a stillborn fetus on October 2, 1971, but an X-ray revealed a second fetus remained in her uterus.
- Judy allegedly requested a therapeutic abortion to preserve her health, and her physician initially recommended the procedure.
- However, the abortion was not performed, allegedly due to intervention by the hospital and religious considerations.
- On October 13, 1971, prior to the legalization of abortion in Roe v. Wade, Kelly Hummel was born prematurely.
- Kelly was born with severe birth defects, including psychomotor retardation and blindness, requiring lifelong special care.
Procedural Posture:
- Plaintiff filed a complaint in the Law Division (trial court) against the physician and hospital.
- The trial court granted the physician's motion to dismiss for failure to state a claim and the hospital's motion for summary judgment.
- Plaintiff appealed to the Appellate Division.
- The Appellate Division affirmed the trial court's dismissal.
- The Supreme Court of New Jersey granted the plaintiff's petition for certification.
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Issue:
Does a child born with severe birth defects have a valid "wrongful life" cause of action against medical providers for failing to perform a therapeutic abortion on the mother prior to the Supreme Court's decision in Roe v. Wade?
Opinions:
Majority - Clifford
No, a wrongful life claim cannot be recognized for a child born before Roe v. Wade because the legal foundation for such a claim—the right to choose not to bear a child—did not exist. The Court reasoned that the wrongful life cause of action established in Procanik v. Cillo is premised entirely on the parents' lawful ability to choose a eugenic abortion. In 1971, eugenic abortions were illegal; only therapeutic abortions to save the mother's life were permitted. Therefore, any duty the doctor had to perform an abortion was owed strictly to the mother to protect her life, not to the fetus to prevent its birth. The Court concluded that in 1971, the law viewed any life as preferable to non-existence, and recognizing a duty to the child based on the mother's health risk would create arbitrary distinctions among children born pre-Roe.
Dissent - Handler
Yes, the child should be permitted to recover damages because the medical malpractice proximately caused her to be born with foreseeable and devastating defects. Justice Handler argued that the physician's duty to the mother to respect her medical choices—specifically the choice to have a therapeutic abortion—encompassed a duty to the family and the unborn child. He contended that the defendants effectively overrode the mother's decision to have a procedure that was legal at the time (to save her life), resulting in a birth that otherwise would not occurred. The dissent viewed the denial of relief based on the pre-Roe timing as a triumph of logic over justice, ignoring the reality of the harm inflicted on the child.
Analysis:
This decision sets a strict temporal boundary on 'wrongful life' torts in New Jersey, limiting them to cases arising after Roe v. Wade (1973). The court clarifies that the essence of a wrongful life claim is the deprivation of the parents' right to make an informed reproductive choice. Since that right was not legally recognized regarding eugenic abortions in 1971, there could be no breach of duty to the child for failing to prevent their birth. The case reinforces the legal distinction between therapeutic abortions (focused on maternal health) and eugenic abortions (focused on preventing birth defects), holding that a failure to perform the former does not create a cause of action for the latter regarding the infant.
