Iowa Supreme Court opens the courthouse doors to ‘wrongful birth’ lawsuits

By: Rox Laird on June 5th, 2017

Pamela and Jeremy Plowmans’ appeal to the Iowa Supreme Court presented hard questions about the rights of parents to be informed about abnormalities of an unborn child that may lead them to choose an abortion.

The Court, carefully picking through this moral minefield, issued a decision Friday that focused on the narrow question of whether the courthouse doors should be open or closed to such “wrongful birth” claims.

Six of seven justices concluded they should be open.

“The right to sue for wrongful birth belongs to parents who were denied the opportunity to make an informed choice whether to lawfully terminate a pregnancy in Iowa,” Justice Thomas Waterman wrote for the majority. “It is not this court’s role to second-guess that intensely personal and difficult decision. Parents of children with disabilities may find their lives enriched by the challenges and joys they confront daily. But under our tort law, financial compensation should be paid by the negligent physician if liability is proven.”

The Court held separately that a father has a right to bring a wrongful birth claim.

In addition to Waterman, the decision was supported by Justices Brent Appel, David Wiggins, Daryl Hecht and Bruce Zager. Chief Justice Mark Cady wrote a separate concurring opinion, and Justice Edward Mansfield filed a dissent.

The issue in this case is not assigning fault for a fetal abnormality but the right to know about it in order to make an informed choice about whether to terminate the pregnancy.

When Pamela Plowman was 22 weeks into her pregnancy an ultrasound test showed that the fetus’ head was “abnormally small” and follow-up tests were recommended. The radiologist did not report these findings, however, and Pamela’s obstetrics doctor told her the ultrasound showed that “everything was fine” with the baby’s development. There were no follow-up tests.

Today the child, identified as “Z.P.” in court documents, “suffers from cerebral palsy, microcephaly, intellectual disability, cortical visual impairment, and seizure disorder. He requires frequent visits to numerous doctors in Iowa City and Keokuk. Physical therapists come to his home one to two times weekly. He is on daily medication for seizures and reflux.” And, Waterman wrote, “it is unlikely Z.P. will ever walk or speak.”

While the exact cause of Z.P.’s disabilities has not been determined, the Plowmans (who have since divorced) contend they are related to the abnormal head circumference identified in the ultrasound test. They sued, accusing medical professionals of negligence by failing to accurately diagnose and communicate these fetal abnormalities. Had she known of them prior to birth, Pamela would have had an abortion.

The suit presented a question of “first impression” to the Iowa Supreme Court.

In 1984 the Court held that parents could not recover for a “wrongful pregnancy” after a failed abortion led to the birth of a healthy child because “a parent cannot be said to have been damaged or injured by the birth and rearing of a normal, healthy child.” But, before now it had not ruled on whether parents of a child born with severe disabilities can sue for wrongful birth.

At least 23 states have recognized wrongful birth claims through judicial decisions, and Maine has done so by statute. Three state supreme courts have refused to allow wrongful-birth claims, and 12 states bar such claims by statute.

The prevailing view in other state courts, Waterman wrote, is that the “injury is not the resulting life, but the negligent deprivation of information important to the parents’ choice whether to terminate a pregnancy.” He compared this to a claim for medical negligence based on lack of informed consent and the legal principle that a patient has the right to “exercise control over his or her body by making an informed decision.”

In response to the defendants’ argument that wrongful-birth claims will stigmatize disabled people generally, Waterman said that “concern does not warrant closing the courthouse door to these parents,” who seek compensation to cover medical and educational expenses to minimize a child’s disability.

In his concurrence, Chief Justice Cady said he would not make a distinction between a child “perceived as ‘normal’ and a child perceived as “disabled.’ ”

The majority decision “implies that while the benefits of parenting ‘normal, healthy’ children can outweigh the costs, the benefits of parenting a disabled child will not,” Cady wrote. “Society would be better served if we proceed forward with this tort by abandoning the inclination to distinguish people as either normal or disabled.”

Justice Mansfield expressed stronger concerns in his dissent, arguing that such legal claims are contrary to concepts of common law and are specifically barred by statute. Moreover, he said, there are good public policy reasons not to recognize such claims.

“In my view, the court’s ruling leads to a slippery slope,” Mansfield wrote. “True, today’s decision is limited to a ‘severely disabled child.’ But the court does not define the term. What if testing indicates the child will be born blind or without a hand? Is that enough?”

Also, Mansfield said there is the problem of excluding jurors in such cases who have “deep-seated moral and religious objections to abortion, even if the unborn child has a severe disability.”

Mansfield said he would leave it to the Iowa Legislature to decide this issue, and the majority opinion might also be read as inviting that outcome: “If the legislature disagrees with our decision,” Waterman wrote, “it is free to enact a statute precluding wrongful-birth claims.”

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On Brief is devoted to appellate litigation, with a focus on the Iowa Supreme Court, the Iowa Court of Appeals, and the United States Court of Appeals for the Eighth Circuit.
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