Smith v. Cote
513 A.2d 341, 55 U.S.L.W. 2071, 128 N.H. 231 (1986)
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Rule of Law:
Parents may maintain a cause of action for wrongful birth to recover the extraordinary costs of raising a child with birth defects when a physician's negligence deprived them of the ability to make an informed decision to terminate the pregnancy; however, a child may not maintain a cause of action for wrongful life.
Facts:
- In early 1979, Linda J. Smith became pregnant and was under the care of the defendant physicians.
- On April 10, 1979, Linda consulted the defendants with symptoms including an itchy rash and a slight fever, which they diagnosed as an allergic reaction.
- The plaintiffs allege that Linda actually contracted rubella, a disease known to cause birth defects, during this early stage of her pregnancy.
- On August 3, 1979, when Linda was in her second trimester, the defendants directed her to undergo a rubella titre test, which indicated she had been exposed to the disease.
- Linda Smith asserts that had she been timely informed of her rubella exposure and the associated risks to the fetus, she would have terminated the pregnancy.
- On January 1, 1980, Linda gave birth to a daughter, Heather B. Smith.
- Heather was born with congenital rubella syndrome, suffering from severe impairments including bilateral cataracts, heart defects, motor retardation, and a significant hearing impairment.
Procedural Posture:
- Linda J. Smith and Heather B. Smith filed a negligence action against their physicians in the New Hampshire Superior Court (trial court).
- The complaint included counts for wrongful birth on behalf of Linda and wrongful life on behalf of Heather.
- The defendants filed a motion to dismiss, arguing that New Hampshire law does not recognize these causes of action.
- The Superior Court, without ruling on the motion, transferred four questions of law to the New Hampshire Supreme Court to determine if the causes of action for wrongful birth and wrongful life are cognizable.
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Issue:
Does New Hampshire law recognize a cause of action for (1) 'wrongful birth' by a mother against a physician whose negligence deprived her of the information to make an informed decision to have an abortion, and (2) 'wrongful life' by the child born with defects as a result?
Opinions:
Majority - Batchelder, J.
Yes, as to wrongful birth; No, as to wrongful life. A parent may bring a claim for wrongful birth, but a child may not bring a claim for wrongful life. The court recognized that a physician's duty of due care, in light of Roe v. Wade's protection of a woman's right to choose, includes providing information necessary for an informed procreative decision. A breach of this duty can cause legally cognizable harm to the parents by depriving them of this choice and imposing upon them the extraordinary financial burdens of raising a child with severe defects. However, a claim for wrongful life is not cognizable because it requires the court to accept that life with severe impairments is a legal injury and that non-existence would have been preferable, a determination the judiciary is unable and unwilling to make. The court reasoned that recognizing such a claim would contravene the 'preciousness and sanctity of human life' and involve the courts in deciding whether a person's life is worthwhile, a role it firmly rejected. The court also denied recovery for parental emotional distress in wrongful birth claims to maintain proportionality and avoid anomalous results where parents of injured children cannot recover for similar distress.
Concurring - Souter, J.
Yes, but with clarification. The majority's holding does not require a physician with conscientious scruples against abortion to perform or advise on procedures they find morally objectionable. The duty of due care might be satisfied if such a physician timely discloses their moral or religious limitations to the patient and provides a timely referral to another physician who does not have such constraints. This approach would allow physicians to practice according to their conscience without being exposed to malpractice liability for failing to personally provide information or services related to abortion.
Analysis:
This case established the tort of wrongful birth in New Hampshire, aligning the state with the majority of jurisdictions that recognize such a claim post-Roe v. Wade. The decision's significance lies in its careful balancing act: it upholds the constitutional right to make an informed procreative choice by holding physicians accountable, while strictly limiting liability to tangible, extraordinary costs. By simultaneously rejecting the tort of wrongful life, the court erected a firm barrier against claims that require a judicial valuation of life itself, reinforcing a strong policy against courts determining that non-existence can be legally preferable to an impaired existence. This bifurcation defines the boundaries of prenatal torts, providing a clear but limited path for parental recovery while protecting physicians from boundless liability and affirming the legal status of all lives, regardless of disability.
