An Analysis of “Wrongful Birth” (with a twist of Product Recall!)

An Analysis of “Wrongful Birth” (with a twist of Product Recall!)

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The phrase almost looks like a typo—wrongful birth? What could that possibly mean? Isn’t bring a baby into the world supposed to be among the most beautiful things humans can do? There’s a phrase much like “wrongful birth” that most Americans with some familiarity with the law are acquainted with: “wrongful death.” To explain the meanings of “wrongful birth” as they relate to personal injury law, we’re going to first begin by giving a very brief overview of wrongful death.

Wrongful death (is any death ever right?) is a term used to label deaths that happened from unnatural causes, though they may not necessarily be criminal. For example, if a criminal shoots and kills someone during a robbery, the victim has suffered a wrongful death. Likewise, if a doctor prescribes the wrong type of medication to a patient and, as a result, the patient dies, that is also an example of wrongful death even though there may not have been any malicious intent on the part of the doctor. In essence, wrongful death claims are brought against individuals whose negligent actions have caused the death of someone.

So, based on our understanding of wrongful death, we can deduce that “wrongful birth” implies a birth that was not supposed to take place—or that took place in the wrong way. Wrongful birth-type claims are often filed against medical practitioners for medical malpractice. For example, say a doctor prescribed an expectant mother a certain medication that led to her baby being born with birth defects—that might be an example of a wrongful birth because the baby would have been born healthy were it not for the negligence of the prescribing doctor. Another way we can look at “wrongful birth” is the unintended birth of a child (with birth defects or entirely healthy). To illustrate this latter interpretation, let’s look at a lawsuit recently filed by a Georgia woman against a company that produces the birth control bills she was taking.

The woman had been taken the company’s birth control pills for 12 years and then, one day, she took a pregnancy test and—voila!—she was pregnant.  Shortly after discovering her pregnancy, she received a letter from the company informing her that the product she had been taking was being recalled—the pills had been ordered improperly in the packaging and thus were ineffective as a means by which to prevent pregnancy. Well, obviously the product recall notice was a little too late for this woman, given that she was already pregnant. In this case, the “wrongful” action was the baby being born given that this woman was taking medication for the specific purpose of preventing the pregnancy. Additionally, though the company did recognize their error and issue a product recall notice, they failed to act in a timely manner, resulting in the woman having already taken the defective medicine.

Legal experts have mixed reviews when it comes to how to determine compensation in this type of wrongful birth case. First of all, the companies preemptively protect themselves against these types of unexpected births by noting that their products cannot ever be 100% effective (just as condom manufacturers do). Still, this case isn’t one just resulting from a normal state of affairs; this woman got pregnant because her pills were improperly ordered in the packaging—and this type of negligence (especially the lateness of the company in alerting her of their mistake) is an issue not explicitly covered in the company’s disclaimer that their products are not 100% effective. Most legal scholars agree that the company will have to pay for the bills associated with the pregnancy. Some feel the company will have to pay more, and others feel that the company won’t have to—they argue, what if the baby turns out to be an Albert Einstein?

Wrongful birth lawsuits—like all personal injury issues—are complex and differ on a case-by-case basis. This blog, like all others, should be utilized as general insight rather than detail-oriented legal advice.

If you have any questions about this or any other issue, please contact the Law Offices of Aronberg & Aronberg for a free consultation by calling 561-266-9191 or emailing