Assessment on "Wrongful Life / Damages Debate Topic-Role Negative"

Assessment 11 pages (3333 words) Sources: 1+

[EXCERPT] . . . .

Wrongful Life / Damages

Debate Topic-Role Negative

In the most common type of wrongful life case, a doctor (or geneticist) fails to diagnose a very sever genetic problem in a fetus. In most cases, the problem is so severe that many parents say that, had they known about the problem, they would have aborted the fetus. When the parents, or the parents acting on the child's behalf, brings a claim to court alleging that the doctor or geneticist was negligent in failing to diagnose the problem, it is called -- or known as -- a "wrongful life" claim.

In Tort law, damages are usually compensatory in nature -- that is, they are given with the goal of returning the hurt party to the position her or she held before the injury took place. For example, in the case that someone slipped and then fell, a successful plaintiff would get damages calculated to compensate for any medical expenses and income that was lost as a result of the injury. "The basic claim is that the physician or geneticist made a mistake. Had the mistake not been made, the plaintiff asserts, his or her parents would have terminated a pregnancy" (Doerr 2009). In the context of a wrongful life claim, however, compensatory damages raise logical problem" (Doerr 2009). The basis claim is that the doctor or geneticist made a huge error. If the error had not been made, the plaintiff will, undoubtedly, argue that his or her parents would have definitely ended the pregnancy

There are two very important and distinct issues here to be recognized. First of all, if the error hadn't happened, the plaintiff would not exist and could not bring a tort claim in court. Second of all, and maybe most worrisome of the two, the plaintiff in a wrongful life case necessarily claims that she has been injured by a parental decision not to get rid of the baby.

The notion that having a baby could be a moral crime, or that bringing an innocent life into the world could be -- perhaps -- wrong, may sound utterly strange at first listen. Giving birth to a new life is one of the most glorious things a human being can possibly do. The choice is usually seen as completely unproblematic from a moral (as well as social and medical) perspective. Going through with an abortion or choosing to not have children are the only options that seem to require any type of justification. The notion that having a child might actually be wrongful as opposed to right or convenient, dangerous, or embarrassing, is not something that is original. The English philosopher, John Stuart Mill, created what is quite possibly the best statement of what this wrong might be in his essay entitled On Liberty.

It is still unrecognized that to bring a child into existence without a fair prospect of being able, not only to provide food for its body but instruction for its mind, is a moral crime, both against the unfortunate offspring and against society (Mill 1929).

The crimes that Mill is alluding to are easily fixed -- as Mill is aware himself. He goes on:

If the parent does not fulfill this obligation, the State ought to see that it is fulfilled, at the charge, as far as possible, of the parent (Mill 1929).

The powerful idea that was introduced by Mill includes the notion that one can hurt people simply by giving birth to them, and this may also represent a moral crime. It is these notions that are at the focus of the incredibly controversial "wrongful life" lawsuits that have recently proliferated in the United State and are also appearing in the United Kingdom (Harris 1990).

Following John Stuart Mill, one aspect of liberalism rests on the notion that laws limiting liberty may be justified only if the restricted conduct might hurt other individuals. One may make a rough distinction between the private harm principle, which is related to public institutions or the general public. The private harm principle can be stated as thus:

There is good reason for laws that protect individuals from harm by others. While other principle, such as paternalism, may be thought to justify laws limited liberty, none of them are considered herein (Bayles 1975).

In Cattanach v. Melchior, the issue decided by the High Court in was whether, if as a consequence of doctor negligence, parents become the parents of an "unintended" but healthy child, a court can, in a reward of damages, require the doctor to bear the cost of raising and maintaining that child. By a small majority (4 judges to 3), the High Court decided that the parents could recover compensation for raising and maintaining their child until the age of 18. This decision, which basically regards children as a "damage" where compensation from a doctor responsible for its existence, is simply wrong.

A similar case that raised issues closest to those created in Cattanach v. Melchior occurred in the 1995 New South Wales Court of Appeal decision in CES v. Superclinics (Australia) Pty Ltd. In this case, it was found 2-1 that damages could not be awarded for the cost of raising a child that was born as a consequence of a doctor's negligence in that he failed to diagnose a patient's pregnancy in enough time for her to undergo an abortion. While the woman may have not had sufficient time to undergo an abortion, the woman did have the option of putting her child up for adoption -- which she did not. The defendant, therefore, was not legally responsible for the cost of raising the child that the mother made a decision to keep. For Priestley JA, the matter came down to "causation." His Honour only allowed damages to be recovered up to the time when the mother could have put the child up for adoption.

Kirby A-CJ rejected the whole idea based on the perspective that the "sanctity of human life" prohibited the law from offering damages for economic consequences of the unwanted pregnancy that resulted from negligence and could not find a reason rooted in public policy to deny full recovery of damages claimed to compensate for the damage suffered. He saw the question more about what expense would reasonably come up in raising a child that was born as a consequence of a doctor's negligence, from the time of birth up until adulthood; in more basic terms, allowing recovery of damages for a loss which comes directly from the negligent act. This included the expenses of raising a child up until adulthood (Sampford 2003).

Meagher JA disagreed, finding that the claim could not be established by the plaintiff and would not allow damages of any kind because the common law does not award damages where the defendant's negligence results in the plaintiff being unable to perform an unlawful act (i.e. have an abortion). Thus no damages could be rewarded for rearing the child. To allow the recovery of damages would be offensive and would undermine the fact that the child offered happiness, for which calculation of damages would be impossible to come up with (Sampford 2003).

To offer damages to parents gives the wrong idea to society. It basically lumps all of the responsibility on doctors and this should not be the case. Individuals have got to take responsibility for their own lives and their own situations. In the case of the woman who had to give birth because it was too late to have an abortion, the question has got to raised: How did she not know she was pregnant? We expect doctors to be Gods, in a way. We expect them to locate problems immediately, know what our bodies are going through before we do; but some of this has got to be lumped on the patient as well. Doctors are not psychic and they cannot possibly know what is occurring with the fetus as every single moment of the pregnancy. While doctors can only do so much, nature can do everything.

Doctors are seeing people all day (and sometimes night perhaps) and it would be crazy to think that there are never any mishaps. To think that a doctor should have to pay for wrongful life sends a horrible message to society. It is fundamentally saying that we don't have to have any responsibility for ourselves; if you doctors don't do their jobs, then we can always sue.

In many cases, it would have to be considered at least that some parents would have gone through with the pregnancy had they known of the implications. Claiming wrongful life gives them the money they need to raise their child. Another example, if a child is born with birth defects, why do the doctors have to be the ones to blame. Shouldn't people who are thinking about having children be aware of their own genetic background and their partner's genetic background? Having the ability to tell the doctor that one… READ MORE

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