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07/24/2007

The language of “wrongful birth”

A jury awarded $23.5 million today to a Florida couple in what’s been touted as a “wrongful birth” case. Amara and Daniel Estrada filed suit after a geneticist at the University of South Florida failed to diagnose Smith-Lemli-Opitz syndrome in their first son and assured the couple there was no risk to future children. The Estradas went ahead and had another son, who also turned out to have Smith-Lemli-Opitz (it’s a disorder in which the body has trouble synthesizing cholesterol). The couple argued they wouldn’t have gone ahead with the second pregnancy if the first son had been correctly diagnosed and the risk to the second child identified.

As the New York Times Magazine reported last year, the number of cases involving “wrongful birth” are increasing and about half the states recognize it as an area of malpractice. These cases prompt a whole string of ethical questions about abortion, disability, the use of genetic testing and so on. But here’s a non-rhetorical question that only focuses on language: Is “wrongful birth” the best term to use in these situations? In this most recent Florida case, wouldn’t “missed diagnosis” have been a more accurate term? According to the court, that’s exactly what happened — a doctor failed to identify a genetic disorder. He missed it. Then again, the Estradas’ decision to not end the second pregnancy was based on the advice of their geneticist. It was one event in a chain that led to birth, so maybe the phrase “wrongful birth” does have a role here.

The language we use can have a powerful effect on how our society works through issues. (If you believe people such as George Lakoff, it’s the reason one political party has dominated the other over the last decade.) So it would seem like everyone would benefit if we can find the most accurate words to talk about these situations. Of course, accuracy is sometimes in the ear of the beholder.

Back in the legal world, this Florida case could become even more complicated. Because the University of South Florida is a public institution, state law caps the damages it can pay out at $200 thousand. The Estradas will now have to petition the state legislature to pass a bill authorizing the payment of the full $23.5 million. But as the Tampa Tribune reported, the potential role of abortion in this case could affect the proceedings. As the state senator who heads up the committee that will oversee the payout told the Trib, “In the 15 years I’ve been in the Legislature, I haven’t seen that kind of issue. This has a potential moral question that could become a potential political issue. I don’t know what the Legislature will do with that.”

-Greg Dahlmann

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