In 1967, the New Jersey Supreme Court rejected a "wrongful birth" claim and framed its decision in an eloquent affirmation of human dignity:
"The right to life is inalienable in our society. A court cannot say what defects should prevent an embryo from being allowed life such that the denial at the opportunity to terminate the existence of a defective child in embryo can support a cause of action . . . A child need not be perfect to have a worthwhile life . . . . The sanctity of the single human life is the decisive factor in this issue in tort. Eugenic considerations are not controlling. We are not talking here about the breeding of prize cattle. It may have been easier for the mother and less expensive for the father to have terminated the life of their child while he was an embryo, but these alleged detriments cannot stand against the preciousness of the single human life to support a remedy in tort."
In other words, the New Jersey Court affirmed that every single human life, whatever its circumstances or genetic condition, is worthy of existence, and that existence is to be prized over nonexistence as a matter of principle.
Just six years later, the U. S. Supreme Court would hand down the infamous Roe v. Wade decision, legalizing abortion. With that sweeping decision, everything changed. As attorney Jay Webber explains, "The Roe opinion completely reshaped legal views of the unborn, however, and soon thereafter the New Jersey Supremes were singing a different tune. In 1979, that court became the first to recognize the torts of wrongful birth. In light of Roe, the Court said that eugenic considerations in fact did control decisions regarding the birth of a child."
Keep all that in mind when you look at Sunday's edition of The New York Times Magazine. In this issue, writer Elizabeth Weil addresses the issue of "wrongful birth" claims and the ethical confusion into which these issues are now debated. Beyond this, she acknowledges that this issue points, not only to confusion, but to significant danger.
She should know. As she recounts in her essay, Weil and her husband decided roughly two years ago to abort an unborn child when she discovered at 23 weeks of gestation that "our unborn son had contracted cytyomegalovirius." That disease, if contracted by the mother for the first time while she is pregnant and then passed along to her fetus can lead to severe birth defects. "Most likely our child would be deaf, blind and have serious mental retardation--a doctor friend told me that this prognosis could make a child with Down look like a walk in the park--but no one could tell us for sure what our unborn son's health would be like. What is more, no good studies existed because most of the women in the samples terminated before birth." So what did Weil and her husband decide to do? "We did what seemed right at the time: we aborted."
In her lengthy essay, Weil reviews many of the current issues related to wrongful birth and wrongful life claims. At the center of her essay is the Branca family and little A. J. Branca, born June 11, 1999. As Weil explains, Donna Branca was 31 when she became pregnant with A. J. Therefore, many of the prenatal tests that are customarily done on older mothers were not performed on Branca and her baby. Even after she experienced bleeding and other complications of her pregnancy, her doctors did not offer her tests in order to determine whether the baby might be carrying a genetic disease. "Looking back now, of course, it's easy to say I should have asked more questions or maybe been a little more concerned," Branca told Weil.
Just before A. J. was born, however, further complications led to a visit to another medical facility, where an amniocentesis test indicated that A. J. had a gene duplication and a gene deletion on his fourth chromosome. After A. J.'s birth, it was determined that he had Wolf-Hirschhorn syndrome, which often includes mental retardation, an inability to speak, physical disfigurement, as well as seizures and other problems.
