Texas Bill Would Ban ‘Wrongful Birth’ Claims

AUSTIN, Texas (CN) — A Texas Senate committee unanimously approved a bill to prohibit parents from seeking damages for “wrongful birth” medical malpractice claims if they were not informed of genetic or congenital abnormalities in the fetus.

Texas and 27 other states allow parents to sue doctors for wrongful birth if they do not provide them with information that allows them to make an informed decision about whether to have a child. Opponents of the Texas bill told the state Senate committee that it will allow doctors to “manipulate the family by lying” to them, and impose a doctor’s religious belief upon them.

Senate Bill 25, by state Sen. Brandon Creighton, R-Conroe, states, inter alia: “WRONGFUL BIRTH. A cause of action may not arise, and damages may not be awarded, on behalf of any person, based on the claim that but for the act or omission of another, a person would not have been permitted to have been born alive but would have been aborted.”

Creighton said the bill would send a message that Texas “does not believe that a life in and of itself is an injury in which parents need a damage payment.”

“The presence of a disability in a child should not be grounds for a lawsuit,” Creighton said at a Senate State Affairs Committee hearing on Feb. 27.

He said doctors should not be held liable for disabilities “they did not cause,” and that doctors “may overcautiously seek out all potential disabilities and promote abortions in order to avoid liability.”

Opponents called it another attempt by the state to infringe upon a woman’s right to choose to have an abortion and that it essentially allows doctors to withhold information from patients, and impose their religious beliefs upon them.

“It seems to be axiomatic that we should have to stand up and say that it shouldn’t be policy for the state of Texas to excuse doctors from lying to their patients, and that’s what this bill does,” said Blake Rocap, legislative counsel for National Abortion Rights Action League / Pro-Choice Texas.

The bill’s defenders say that parents will still be able to sue doctors for negligence, but Rocap told the committee that eliminating wrongful birth as a cause of action would make it more difficult for parents to seek damages to help them care for a child born with special needs.

Rachel Tittle, an Austin resident who testified at the hearing as a “scientist and mother of a stillborn child,” said that the bill could keep doctors from sharing information that would allow parents to seek pregnancy interventions that could prevent fetal deaths and give a child the best chance at a normal life.

“It is not the doctor’s right to manipulate the family by lying, and it is not the doctor’s right to decide if an experimental therapy is worth trying,” Tittle said.

The committee, which includes two Democrats, unanimously approved the bill, which is a legislative priority this session for Lt. Gov. Dan Patrick, even though wrongful birth claims are rare.

Mari Robinson, a former director of the Texas Medical Board, told senators during an interim committee hearing last year that her agency had investigated only five wrongful birth cases since the cause was recognized by the Texas Supreme Court in 1975, in Jacobs v. Theimer.

In that case the court sided with parents of a disabled child who said they would have terminated the pregnancy if the doctor had told the woman she had rubella, or German measles, which is known to cause serious birth defects.

“We do not regard the issue before us as requiring our decision of the public policy either for or against abortion,” Justice Thomas Reavley wrote in the Jacobs ruling. “The suit for recovery of expenses is reasonably necessary for the care and treatment of their child’s physical impairment … is not barred by considerations of public policy.”

Nine states, including Arizona, Indiana and South Dakota, have banned wrongful birth lawsuits.