It's a wonderful life: is it possible to say that a severely disabled child has been harmed by the mere fact of being born?
"It's a Wonderful Life," the title of Frank Capra's classic 1946 movie, seems to encapsulate a fundamental all-American conviction. Unsurprisingly, several courts and jurists have applied the movie-title maxim as the ultimate retort to one of the most intriguing questions in modern tort discourse: Is it possible to say that a severely disabled child has been harmed by the mere fact of being born? Wrongful life claimants answer in the affirmative, whereas Capra's aphorism makes a compelling counter-argument. In my opinion, the contrasting views represent equally legitimate subjective beliefs rather than objective truths, so neither may ever prevail. Without a satisfactory solution from conventional wisdom, the life-as-injury debate may be the Gordian knot of tort law. The purpose of this Article is to cut, rather than untie, the knot: Allow the child to recover without challenging or validating the deep-seated perception of life. Part I shows that hostility to liability in tort for wrongful life is almost universal, crossing lands and seas. Part II argues that this demurral is ultimately rooted in the absence of one of the central components of the cause of action. A tort action must fail because of the inability--both logical and practical--to establish "harm" under the traditional definition of this term. Part III opines that because the Gordian knot of tort law cannot be untied, it must be cut altogether. We must replace the traditional tort framework, which gives rise to an insoluble problem, with a more promising contractual framework inspired by the celebrated case of Hawkins v. McGee. In my view, the child may base an action on the claim that the defendant promised the parents that the child would be born without a certain defect and that the promise went unfulfilled. In formal terms, the child is an intended third party beneficiary of the contract between the parents and the consultant in which the latter warranted birth without a particular disability. The warranty of the future child's physical integrity and health, an integral and inseparable part of the contract, should form the basis of the child's cause of action.
Perry
Ronen
R
University of Haifa.
D000028:Abortion, Induced; D002170:Canada; D002648:Child; D035881:Compensation and Redress / Q000331:legislation & jurisprudence*; D032982:Contracts / Q000331:legislation & jurisprudence; D003695:Delivery of Health Care / Q000191:economics / Q000331:legislation & jurisprudence; D019988:Children with Disabilities / Q000331:legislation & jurisprudence*; D005060:Europe; D005260:Female; D006806:Human Rights / Q000331:legislation & jurisprudence*; D006801:Humans; D007223:Infant; D007231:Infant, Newborn; D016365:Liability, Legal; D008297:Male; D010290:Parents; D011247:Pregnancy; D011640:Public Policy; D011788:Quality of Life; D046269:Reproductive Rights / Q000331:legislation & jurisprudence*; D014481:United States; D026712:Value of Life; D015974:Wrongful Life