This is our only discussion of the private law. Entirely apart from the specific case of wrongful life lawsuits, we got a taste of what tort law involves.
Of course, wrongful life lawsuits raise a variety of puzzling questions. One is how anyone could claim to have been harmed by being born. In most cases, it is hard to make out how a person could be worse off being born with a disabling condition than by not being born at all. But that is exactly what the lawsuits we looked at alleged.
Cribbing from Seana Shiffrin’s article (see pages 745–67 in our textbook), I presented the following cases:
We’re much less willing to hold me liable for your broken arm in the first case than in the second. This is so even if you would come out ahead in the second case.
Wrongful life cases may be like the second case. The harm done to the person is done in order to provide a benefit: life.
Note the assumption that it is impossible to harm a person who does not exist. That is why whatever steps taken to prevent that person’s life would not count as harming the person. Obviously, this assumption will apply better to some cases than to others.
We noted a few problems with the decision. Ryan pointed out that the first argument given by the majority would apply equally well to lawsuits on behalf of the parents as it does to lawsuits on behalf of the children.
That argument contends that there is no way of specifying what duty the doctors owe to the children. Must a doctor ensure that whatever child is born is perfect, the majority asks?
Ben showed how the dissenting opinion is flawed. The dissenter said that doctors can’t be liable for a child’s birth defects because the doctors don’t cause them. Genes do.
But, as Ben pointed out, lots of medical malpractice involves failing to treat or warn about a condition. Doctors don’t have to be the cause of the condition in order to be liable for the damage that it causes. Of course, it isn’t easy to say exactly what they are liable for or, in other words, what they are required to do. But there’s no reason to think that their liability is restricted to harms that they cause.