Potential Liability For Wrongful-Birth Claims

On Nov. 14, 2012, in Sernovitz v. Dershaw, 2012 Pa. Super. 248 (Pa. Super. Ct. 2012), the Pennsylvania Superior Court held that 42 Pa.S.C.A. § 8305, which prohibited the tort claims of wrongful birth and wrongful life, was unconstitutional because the manner in which the bill was enacted violated Article III, Section 3 of the Pennsylvania Constitution. Specifically, the Superior Court held that Section 8305 violated the single-subject rule, which requires that a bill address a single subject that is clearly expressed in its title.

The claims raised in Sernovitz are classic wrongful-birth and wrongful-life claims. Rebecca Sernovitz sought prenatal care in early 2008 and underwent genetic testing because both Rebecca and Lawrence Sernovitz were of Ashkenazi Jewish descent. The Sernovitzes claim that Rebecca Sernovitz's testing revealed her to be a carrier of familial dysautonomia (FD), but she was erroneously informed that all of her tests were negative, according to the opinion. Samuel Sernovitz was born in September 2008 and was diagnosed with FD shortly thereafter. FD is an autosomal recessive disorder, which can only occur in a child if both parents are carriers of the genetic mutation.

Following Samuel's diagnosis, Rebecca Sernovitz was informed that she is a carrier for FD. The Sernovitzes filed a wrongful-birth claim on their own behalf and a wrongful-life claim on behalf of their son. They claim that had they known Rebecca Sernovitz was an FD carrier, Lawrence Sernovitz would also have been tested at that time. When he was revealed to be a carrier, they would have tested the fetus and terminated the pregnancy upon learning that it was affected with FD.

Wrongful birth is a tort claim based on the deprivation of an opportunity to terminate a pregnancy. The claim is brought by the parents who were deprived of the option to terminate their pregnancy and the recovery sought generally includes the increased costs associated with raising a child with an illness, as well as compensation for emotional distress. Wrongful-life claims are brought by the child and assert that the child would have been better off never having been born.

The majority of states permit wrongful-birth claims, though far fewer permit wrongful-life claims. Some states ban both wrongful-birth and wrongful-life claims by statute. Pennsylvania had such a statute in place since 1988. Prior to the enactment of Section 8305, Pennsylvania permitted only wrongful-birth claims...