Texas Senators Consider ‘Wrongful Birth’ Law

Lieutenant Governor Dan Patrick tasked the Senate Health and Human Services Committee with protecting "the unborn" by looking into striking down a law that permits an obscure civil action known as a "wrongful birth" claim.
Lieutenant Governor Dan Patrick tasked the Senate Health and Human Services Committee with protecting “the unborn” by looking into striking down a law that permits an obscure civil action known as a “wrongful birth” claim.  Texas Senate

Texas lawmakers took up an obscure medical malpractice claim on Thursday, one likely to become a point of contention during next year’s legislative session: “wrongful birth.”

The term refers to a Texas law that allows parents of a child born with severe defects to bring forward a “wrongful birth” negligence claim against their doctor if they feel they were not adequately warned about fetal health conditions. Parents who succeed in the civil process are entitled to monetary damages to cover the lifetime costs of raising their disabled child.

The Senate Health and Human Services Committee took up the issue at the direction of Lieutenant Governor Dan Patrick, who included the item in his list of interim charges for lawmakers to consider before they convene again in January. Patrick told lawmakers to “protect the unborn” following the failure of of a “wrongful birth” ban during the 2015 Lege session.

The number of “wrongful birth” cases in Texas is hard to quantify — the director of the state medical board told senators that her agency had investigated five such cases, according to their database — but anti-abortion advocates are anxious to strike down the law.

Joe Pojman, director of the anti-abortion lobby group Texas Alliance for Life, told the Senate committee that the law sends the message that a child “would have been better off had he or she been aborted.”

Pojman also said the claim makes doctors liable for “a disability they did nothing to cause,” and told senators that it encourages medical professionals to “promote abortion to avoid liability,” a concept the organization has likened to “eugenic abortions.”

“Wrongful birth” has its roots in a 1975 Texas Supreme Court case brought forward by a woman whose child was born with disabilities after her doctor did not tell her that she had rubella, which is known to cause serious birth defects, while she was pregnant. Nationally, about half of the states recognize “wrongful birth” claims.

The Texas Medical Board is charged with reviewing doctors and investigating complaints brought against physicians when substandard care is delivered. Mari Robinson, director of the board, told senators that the elimination of the “wrongful birth” claim would do nothing to change her agency’s investigative role. She said that of the five related complaints she found in the medical board’s database, three were ultimately dismissed, one led to a disciplinary order against a physician, and one is currently under investigation.

“This is a very, very narrow field,” Robinson said. “If there is a problem with [the standard of] care, the board has the authority to issue disciplinary orders, but it is not something that we see a lot of.”

Reproductive rights advocates said that eliminating the “wrongful birth” legal claim could rob Texans of the ability to make their own decision about whether to carry a potentially troubled pregnancy to term, or to terminate.

Susan Hays, a longtime abortion rights advocate and attorney, told the Observer she fears a scenario where “a doctor who’s anti-abortion not telling a family there are birth defects, or downplaying them, and they have a child who suffers horribly.”

“It’s also a very upfront way to impose your religious beliefs on other people who have pregnancies with horrible birth defects,” Hays said. “Somebody else gets to decide whether that fetus, or child, suffers and dies.”

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Alexa Garcia-Ditta is a staff writer (and former intern) covering women's health, reproductive health and health care access.

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