Wrongful Birth after <i>Dobbs</i> and the Limits of Tort Law in Areas of Dissensus

As the abortion debate has raged in this country, a secondary debate over wrongful birth has accompanied it. Wrongful birth is a medical-malpractice-like claim brought by parents who allege that a medical provider negligently failed to provide accurate information about the fetus and that had they received accurate information they would have terminated the pregnancy. Courts rejected the tort theory until Roe v. Wade was decided. Post-Roe, courts were heavily divided over whether to recognize the claim and what damages were recoverable. Now, after Dobbs v. Jackson Women’s Health Organization, the continued viability of wrongful birth is in question, and the already chaotic nature of wrongful birth has become even more complex. This Article examines wrongful birth and its criticisms before examining the effect Dobbs is likely to have on wrongful birth jurisprudence. It concludes that wrongful birth will remain unchanged in jurisdictions that do not restrict abortion. And it suggests analyses that might permit wrongful birth to remain viable in jurisdictions that ban abortion, though doing so concededly adds to the dissensus surrounding wrongful birth. Most importantly, the Article examines why wrongful birth has resisted judicial consensus. Instead of simply blaming the heated abortion debate, it concludes that social dissensus about multiple issues makes regulating wrongful birth through tort law inappropriate. Recognizing and accepting the limitations of tort law that wrongful birth exposes is important given that other looming technological developments—such as artificial intelligence and transhumanist ideas to expand human capabilities—promise to raise again and again the same dissensus problem that wrongful birth highlights.