Roe v. Wade provided a "right" to kill an unborn baby for any reason.
The morality and politics of that decision remain alive and unresolved. The decision failed to abort - or should I say "kill" - the issue. In fact, it raised more moral and political issues.
One effect has been to take a lot of the fun out of, and to add a lot of financial risk to, the practice of Obstetrics. The concept of "wrongful birth" captures it. From an important piece in the NYT:
At present, courts in about half the states recognize wrongful birth as a subset of medical negligence or allow lawsuits under the more general malpractice umbrella if a doctor's poor care leads to the delivery of a child the parents claim they would have chosen to terminate in utero had they known in time of its impaired health. In some of these states, like New York, where the Brancas' case was tried, emotional damages — compensation for the distress incurred by having an impaired child — cannot be recovered. No matter the legal context, terminating a wanted pregnancy is no one's first choice, but for the time being at least, when faced with a fetus that will become a severely handicapped child, all the choices are bad. At this moment, we are fairly adept at finding chromosomal flaws and horribly inept at fixing them. There is no chemical or surgical remedy if you find out your child-to-be has cystic fibrosis, fragile X, Down syndrome, Tay-Sachs, anencephaly — the list goes on and on. As Leon Kass, former chairman of the President's Council on Bioethics, has noted, in prenatal cases, often the only way to cure the illness is to prevent the patient.
The first significant wrongful-birth lawsuit involving a disabled child, Gleitman v. Cosgrove, reached the New Jersey Supreme Court in 1966. One plaintiff was the child's mother, who had contracted rubella early in her pregnancy in 1959. Worried, she consulted her doctor and was assured that her unborn baby would be fine, despite the common understanding that rubella early in pregnancy can lead to birth defects. The baby in question was born with "substantial defects. . .in sight, hearing and speech." Interestingly, the court recognized the physicians' failure as well as the parents' anguish and attendant financial burdens although it still decided in favor of the defendants, in part, it seems, because it did not want to enter the ethical thicket inherent in finding for the parents. "A court cannot say what defects should prevent an embryo from being allowed life.. . ." the opinion reads. "Examples of famous persons who have had great achievement despite physical defects come readily to mind, and many of us can think of examples close to home.. . .The sanctity of the single human life is the decisive factor in this suit in tort. Eugenic considerations are not controlling. We are not talking here about the breeding of prize cattle."
By 1978, however, when the next significant wrongful-birth case was decided by a higher court, the 1973 Roe v. Wade decision had established a woman's right to choose — that is, to terminate a pregnancy. The new case, Becker v. Schwartz, involved a geriatric mother (a medical term for a pregnant woman over 35) who was not advised by her doctor that her advanced age put her unborn child at greater risk for birth defects. Her child was born with Down syndrome, and shortly thereafter the mother sued. This time, the New York State Court of Appeals found in favor of the family, declaring it had the right to seek financial damages for the added cost of raising a child with a disability. The court, however, refused to allow the claim of emotional damages. It did recognize the family's suffering, but reasoned it "may experience a love [for their child] that even an abnormality cannot fully dampen."
