Reconsidering Wrongful Birth

The tort action for “wrongful birth” has a history dating back at least to the 1960s, when it emerged along with the claims for “wrongful life” and “wrongful conception.” Since their incipience, this trio of lawsuits has generated an expansive commentary, reaching into thousands of articles in the legal literature alone. With a divide among federal circuits on wrongful birth only beginning to gain visibility with Doherty v. Merck & Co. in 2018 and Zelt v. Xytex Corp. in 2019, the wrongful birth claim could potentially provide a site for the Supreme Court to revisit national abortion policy. The extant literature has also typically been parochial in scope, most often focusing on a specific bill, law, or court decision in a given state or region. Rather than seeking to sift through the multifarious voices in the legal, medical, ethical, sociological, and other literatures opining on these actions for more than half a century, this Essay offers a brief and broader view, canvassing the state and federal terrain governing these actions in 2020. More specifically, this Essay calls into question the dominating role that the wrongful birth claim has come to play, with recent federal circuit decisions speaking to an urgent need for more concerted efforts to limit the scope of recovery in order to better reflect the benefits conferred on parents by unexpected children.