The Debate Over “Wrongful Birth” in Texas

Texas lawmakers have been busy the last few weeks. Controversy surrounding a transgender bathroom bill in the mold of North Carolina’s HB2 law thrust the Texas Senate into the news after its Committee on State Affairs approved the measure with a 7-1 vote. Yet, while all of that was happening, another controversial bill flew slightly under the radar.

Senate Bill 25, which was unanimously passed by the committee and will soon move on to the full senate for a vote, would protect doctors from “wrongful birth” lawsuits. This would effectively prevent parents of a disabled child from using wrongful birth as a cause of action against a doctor who withheld information about a fetus’ condition that would have led parents to choose to have an abortion.

The bill’s supporters argue that wrongful birth as a cause of action in a lawsuit is inherently wrong, as it suggests that a birth could be “wrongful.”

“Senate Bill 25 will 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,” said Texas Senator Brandon Creighton during a livestream of the committee hearing.

Critics of the bill argue that a damage payment is necessary in the event that doctors knowingly lied to parents about the health of a fetus because it limits the freedom of choice that a woman has over her pregnancy and her right to have an abortion.

“Eliminating a wrongful birth claim deprives such parents of the right to sue for monetary damages to cover the lifetime costs of caring for their child,” testified Margaret Johnson on behalf of the League of Women Voters of Texas. “These cases are rare but are appropriate redress for parents in such situations.”

Johnson added,

SB 25 is a not so subtle way of giving medical personnel the opportunity to impose their religious beliefs on pregnant women by withholding information about the condition of the fetus–and depriving women of making an informed decision about continuing the pregnancy.

However, Jennifer Allmon, the executive director of the Texas Catholic Conference of Bishops, contended that the bill “in no way restricts access to testing, in no way restricts access to abortion, and in no way regulates abortion.”

Allmon testified:

It simply says that a lawsuit based on the premise that a child should not have been born is wrong. We believe that a lawsuit that begins as its premise that we should have had the opportunity to kill our disabled child sends a terrible message to those disabled children in Texas.

Supporters of the bill appear to be arguing semantics by pointing out that the bill only targets wrongful birth as a specific course of action because it is morally wrong to suggest that a child should never have been born. They also attest that it wouldn’t hinder a person’s right to bring about another type of medical malpractice lawsuit.

But this logic is dizzying, if not disingenuous. If this law were to take away the option to use wrongful birth and its elements as a claim, constitutional claims could arise that question its validity. Blake Rocap, a legislative counsel for NARAL Pro-Choice Texas, pointed out this illogic in his testimony.

Rocap said:

That’s not how it works. If someone were to maintain a suit for medical malpractice and seek the damages for the care of their special child..they would not be able to recover for that care. The court would say ‘What you’re really doing here is trying to maintain a wrongful birth lawsuit, that’s the cause of action you’re really pleading.

If this bill passes in the full senate, it would be added to a list of controversial anti-abortion laws passed in Texas. According to CNN, wrongful birth lawsuits are actually pretty rare, and the bill’s author acknowledges this fact. Additionally, as NPR reported, these lawsuits are incredibly difficult to win.

Austin Elias-De Jesus

Austin is an editorial intern at Law Street Media. He is a junior at The George Washington University majoring in Political Communication. You can usually find him reading somewhere. If you can’t find him reading, he’s probably taking a walk. Contact Austin at Staff@Lawstreetmedia.com.