Aborted ethics and wrongful liabilities: What hath the Court wrought?

ou will have heard, I take it, of a recent “wrong­ful birth” law­suit. It was but one in a long string of them. The Dai­ly Screech report­ed on it in August: After an amnio­cen­te­sis, par­ents were told they had a healthy baby; par­ents deliv­ered the baby. Turned out, baby has Syn­drome Z. Turned out, the med­ical office had mis­read the results. So par­ents sued on the premise that they would have abort­ed the baby if only they had known about the Syn­drome Z. This was not a unique case; half of all U.S. states rec­og­nize “wrong­ful birth” as a cause of action, and one cou­ple was award­ed a full $50 mil­lion in such a suit.

Yes­ter­day Brandy Zadrozny, also for the Screech, report­ed on the inverse of all this: a case of “wrong­ful abor­tion.” (As though there could be a “right­ful abor­tion.”) This time, a cou­ple was informed that their baby had “abnor­mal gen­i­talia” for a female child. (The report list­ed the gen­der as “XY.”) That meant the baby might devel­op “hor­mon­al abnor­mal­i­ties and organ dys­func­tion.” Moth­er abort­ed the baby. One day lat­er, doc­tor’s office called to say that “XY” was a cler­i­cal error; it should have been “XX.” Autop­sy report showed no defects. Par­ents sued.

Screech reports:

The jury found the lab and its direc­tor had been neg­li­gent, but stopped short of attribut­ing fault for the abor­tion itself, refus­ing to award dam­ages for the Abbotts’ phys­i­cal and emo­tion­al injuries. The ver­dict was upheld in an appeals court in Feb­ru­ary.

Yes. Sounds just enough, on its own terms. Ms. Zadrozny cites more case law, all of it with like results. But she also cites this paper in the Yale Jour­nal of Health Pol­i­cy, Law, and Ethics, in which the authors—-Ronen Per­ry and Yehu­da Adar—conclude that these deci­sions are a “dis­turb­ing anom­aly” for which the law has found no real solu­tion. The rea­son is because “wrong­ful birth” law­suits go in the par­ents’ favor, “wrong­ful abor­tion” law­suits do not.

So what we have here is legal prece­dent by which it is wrong if a child is born in error, but not wrong if a child is killed in error. Bet­ter, it seems, that the healthy should die than that the sick should live. It’s the price we pay for cast­ing the abom­i­na­tion out from the land.

The most dis­turb­ing prece­dent in all this is the case of Mar­tinez vs. Long Island Jew­ish Hill­side Med­ical Cen­ter (1987):

A deeply reli­gious woman, Car­men Mar­tinez, agreed to an abor­tion after being told that a med­ica­tion she had tak­en would cause major birth defects. [That] turned out to be untrue. The court ruled in her favor, not for the pain that came from los­ing a want­ed child, but as a result of the anguish that came from vio­lat­ing her reli­gious beliefs. The appeals court fur­ther explained the unnec­es­sary role of the actu­al baby in the judg­ment. [Think about this, now.] “The emo­tion­al dis­tress for which she seeks recov­ery does not derive from what hap­pened to the fetus; it derives from the psy­cho­log­i­cal injury direct­ly caused by her agree­ing to an act which, as the jury found, was con­trary to her firm­ly held beliefs.

In oth­er words, what the court is say­ing here is that the baby does not have any intrin­sic worth apart from what we think of it. Whether wrong­ful birth or wrong­ful abor­tion, the key thing is that the doc­tors get the data right. Only then can the par­ent make the right deci­sion about the worth of their child’s life. If the details are wrong, the par­ents may judge wrong­ly. Hos­pi­tals and labs and doc­tors may be liable for dam­ages. That’s our mod­ern eth­ic.

•••

What con­cerns me in all of this is that it is the result of hav­ing first accept­ed a false eth­ic. The false eth­ic says that it is all well to take an unborn life—for any rea­son; for whim. In this case, you may take it if it is under the bur­den of some “defect.”

The only rea­son the law can come up with phras­es like “wrong­ful birth” or “wrong­ful abor­tion,” and then labor to assign lia­bil­i­ty and just rec­om­pense, is because it has first accept­ed that it is okay to kill inno­cent life for any rea­son. If a par­ent thinks, based on some per­son­al sys­tem of weights and mea­sures, that a child with Down syn­drome has no busi­ness liv­ing, well, just make sure you know it has Downs.

The law can labor over these ques­tions because it has reject­ed the idea that all life is sacred, that all babies have a right to be born, that their mer­it is intrin­sic to their per­son­hood and not rel­a­tive to their abil­i­ties, and that par­ents have a moral duty to care for their chil­dren. See what Roe hath wrought.

The ques­tions raised by “wrong­ful births” and “wrong­ful abor­tions” are not the right ques­tions because they derive from the wrong answer to an ear­li­er ques­tion. And if pro-lif­ers are to address these issues at all, they need to insist that we return to the ear­li­er ques­tion and answer it right. Right now, the law is attempt­ing to answer the wrong ques­tions. It is quib­bling over the details that arise from false premis­es. No good will come of that. It needs to cor­rect the premise.

But there is anoth­er point to make about all this, which has to do with the human need for some sys­tem of ethics. Peo­ple can­not sim­ply aban­don all ethics. God writes the law on our hearts, and if we reject it, we must search for anoth­er to fill the void. When the law is reject­ed that tells us that all human life, what­ev­er its bur­dens, is equal­ly wor­thy and equal­ly sacred, what fol­lows is a law that assigns lia­bil­i­ty for giv­ing false data by which one may appraise the rel­a­tive worth of a life.

That is the brave new world into which we have arrived. It comes from our rejec­tion of God, and the law of God. It comes from replac­ing Him with our­selves, and His immutable Law with our own plas­tic legal codes. And we will nev­er get the answers right, or even be able to ask the right ques­tions, until we return to the real­i­ty and author­i­ty of God as a first prin­ci­ple.