“A Wrongful Birth”

“A Wrongful Birth” by Elizabeth Weil first appeared in the NY Times Magazine in March 2006. In the article, she explores the reasons how wrongful birth suits gained the place they have today, what this means for the future of medicine and what exactly constitutes the means to try a wrongful birth case. She draws mainly from the story of the Brancas, a New York couple who sued their doctors after their son A.J. was born with Wolf-Hirschhorn syndrome. The parents love him, they say, but would have made the choice to abort him if they had been informed of his condition. Their lawsuit contended that the doctors in their case should have seen warning signs—bleeding during the first trimester, unusually small fetal growth—and advised Donna Branca, the mother, to undergo further tests. The winnings from the multi-million dollar case are now used to pay for A.J.’s care. Weil even speaks of her own pregnancy and the decision she made to abort after being informed that her fetus had contracted a virus that would have caused severe issues.

After searching through several stories, I found this one to be the clearest look at the draw of such a case. It was certainly the most sympathetic, which probably stems from the acknowledged bias of the author. After all, how could one woman who chose to abort her child based on genetic testing harshly criticize another for wanting to have that same choice? In fact, as soon as Weil makes her disclosure, the article seems to have a new twist. Most of the articles I read featuring wrongful birth suits were clinical reports of facts; Weil’s article is clearly not.

I thought some of the statements made in the article were based on incorrect assumptions. While Weil claims to be working outside of the sphere of influence for the negative assumptions made about raising a child with a disability. She even goes as far to make the statement that “no reasonable person would choose sickness over health” implying that given the choice no parent would choose to have a disabled child. It may be true that no parent would choose to have a child that would go through life suffering with a debilitating illness, but there are some parents from disabled communities, like the deaf community, that would choose to have a disabled child. Weil may not have meant this kind of disability, but I think she risks being too flippant with such a general statement.

Also, the Brancas claim that they would not have been so upset with their doctors if the doctors would have apologized. Such a statement is ridiculous. Doctors are not in any position to apologize to their patients no matter what the outcome of their care especially with so many lawsuits waiting to happen. An apology would mean an admission of culpability and they could not provide that.

Another detail that raised my interest was the use of a “Do Not Resuscitate” form to prove that the Brancas would have terminated the pregnancy had they been given the option. It is an interesting idea to assume that a couple who would choose not to resuscitate their child would choose to abort. After all, there is a distinct difference between choosing not to continue suffering after a cardiac arrest and to choose not to see if the child had complications to begin with. Another tactic used by the Branca’s legal team was to show videos of A.J. as a toddler and an infant to show the difficulties faced by him each day. If anything was guaranteed to tug on the heartstrings of a jury, that was. The money is going to pay for A.J.’s daily care, so it makes sense that they should see what that care entails.

In the end, I am left with several questions about this type of trial, and none of them are easy to answer. Is this really a viable way to force doctors to keep their patients informed? Or, is it just another way for people to blame doctors for things beyond anyone's control? Should someone sue for the right to have the option to abort a pregnancy and, if so, where do we draw the line?