Duhaime's Law Dictionary


Wrongful Birth Definition:

A mother's claim in tort that she would not to have given birth to the child with serious genetic defects but for the defendant's negligence in testing or counselling.

Related Terms: Wrongful Life, Wrongful Pregnancy, Wrongful Death

Very similar to the claim for wrongful life except that this claim is, to use the words of law professor Dan Dobbs writing in his 2001 law book, The Law of Torts:

"... asserted by the mother, not the child.

"The mother typically claims that, but for the defendant's negligence in testing or counselling, the mother would have terminated a pregnancy to avoid birth of a child with serious genetic defects."

In Arche, the court suggested that such a claim would only succeed when the:

"... child has such gross deformities, not medically correctable, that the child will never be able to function as a normal human being."

In Kealey v. Berezowski, Justice Lax of the Ontario Court of Justice wrote:

"A wrongful birth case normally arises in an action instituted by parents of a child who is born with birth defects as a result of a planned pregnancy. The legal basis for the cause of action derives from the post-conception interference by the TortFeasor with the mother's lawful right to terminate the pregnancy had an informed decision been available to her."

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