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Understanding Wrongful Birth Claims


You have probably heard the words wrongful death, and medical malpractice. But you may not be aware of another claim, that is closely related to medical malpractice: It’s called wrongful birth, and while the term may, at first, have an insulting connotation—no birth is truly “wrong,”—it does have a real legal meaning, for an actual legal claim.

Wrongful birth cases, sometimes called wrongful conception, is really an all encompassing term for two kinds of claims:

In one kind of case, contraception, or some birth control device, fails, leading to a pregnancy that is unwanted.

In a different kind of case, a child is born with a misdiagnosed defect which, if the parents would have known, they would have opted not to become pregnant, or would have opted to terminate the pregnancy, if they otherwise legally would have that option.

Failure of Birth Control

In the first kind of case, the Defendants are often drug companies or device manufacturers, who manufacture contraceptive medicines and devices that fail.

Similarly, drug manufacturers of medicines totally unrelated to birth or conception, must disclose that their medicines will negate, neutralize, or lessen, the effects of birth control medicines. When they do not provide this necessary information, and the interaction negates the effects of birth control, the parents of the child can sue.

The Defendant can also be a medical professional, if a medical procedure, such as a vasectomy, fails to prevent conception of a child when it was supposed to do so.

Proof to a Jury

In these kinds of cases, there is nothing wrong with the child; he or she is born healthy. That’s why they can be difficult cases; many people don’t see having a healthy child as being “damaged.” But the damage is the failure to safely and legally control the intimate decision to start or not start a family, a choice that is taken away in this situation— not the actual child or his or her birth.

Undiagnosed Medical or Genetic Conditions

In the second kind of wrongful birth case, either the child, or one of the parents, often has a medical condition that is almost guaranteed to have an effect on the health of the child, if born. Had the parents known of the condition, they would have opted to not have a child. This sometimes happens when a parent has an unknown genetic disease or condition, that she or he is not advised about, or which is undiagnosed.

One difficulty of these cases, is that the parents must prove to a jury that had they known about the undiagnosed or misdiagnosed condition, either in the baby or in themselves, that they would have opted to not have the child, or to terminate the pregnancy. That is a difficult thing for many parents to say, believe or want to do.

Still, for babies with conditions that severely impact their quality of life, or which create an enormous medical-financial hardship on parents, it is a valid element of damages, and one that the law does recognize.

Call the Knoxville personal injury attorneys at Fox Farley Willis & Burnette, PLLC, today.




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