Court TV online is reporting this story:

A blind and deaf Australian woman who claims she never should have been born is suing a doctor for a lifetime of suffering in the country’s first “wrongful life” suit.

Alexia Harriton, 24, is seeking compensation from the doctor who misdiagnosed rubella in the first trimester of her mother’s pregnancy, claiming Olga Harriton would have aborted her had she been aware of the potential birth defects arising from the illness.

Lawyers for the Sydney woman argued in Australia’s highest court Thursday that Dr. Paul Stephens is liable for the costs arising from a lifetime of medical treatment that Harriton needs to survive. . . .

Alongside Harriton’s suit is a similar claim from a 5-year-old Australian boy who was born with permanent brain damage and cerebral palsy after doctors failed to detect a blood disorder present in his father’s system.

Keeden Waller’s parents have filed suit on his behalf, claiming they would have sought out other methods of conception had they been aware of the potential for birth defects.

Apparently, Harriton’s parents cannot sue in their own name due to the statute of limitations. Such a suit would - as I understand the law (don’t quote me) - be allowed in many countries, including the US, on grounds of “wrongful birth” or simple malpractice. The theory there is that the parents are harmed by the birth of a child with severe health difficulties, and by being denied the opportunity to choose whether to take on that burden. That argument is reasonable, and such suits are usually successful. (A defense that was commonly tried is that there cannot be any harm in a live birth, because, essentially, babies are always a good thing. But the argument is not that the child should not have been born on objective grounds, rather that the parents should have been given the choice whether it should be or not. Besides which, if every successful live birth is good no matter what, then there is no such thing as malpractice in obstetrics - but obviously there are some births with less-desirable outcomes, and where that is a preventable fault of the physician, the physician should be liable.)

In this case, because that kind of suit is legally blocked, the child is suing in her own name for harms that she herself suffered - namely, the harm of being born. (The same is true in the Waller case, where the parents have filed suit but the son is the official plaintiff.) But, in this case, the only alternative would have been for her (Harriton) not to be born at all (her condition was not caused by a mistake the doctor made during delivery - it was a developmental defect caused by her mother’s illness during the pregnancy, such that the fetus was already affected and nothing could be done about that). It is obvious that the doctor’s actions - not diagnosing rubella and thus failing to warn the mother, as he should have done - caused her to be born as she is. But it is a standard (though not entirely uncontroversial) ethical precept that one is only morally responsible for certain harms if there is something that one could have done differently and that one had an obligation to do. Here it is true that there is something the doctor could have and should have done differently (i.e., correctly diagnose the illness and warn the mother), but that would have resulted in a different outcome only if the mother aborted the pregnancy; there is nothing else she could have done with that warning that would have made a difference.

For a malpractice suit to succeed, the plaintiff must show she was harmed by the doctor’s actions. Given that outcome in question here is her life itself and the only practical thing that could have been done differently would have been to prevent that life, in claiming that this outcome - her life - is a “harm”, she must implicitly be claiming that her life leaves her worse off than the available alternative. In other words, she would have been better off dead at birth. (Similar arguments apply to Waller.)

This is clearly a startling claim, but it is also a challenging one logically and morally. If this claim is equivalent to the claim that she is better off dead now, too, then it seems there is prima facie evidence that this is not so: after all, she has not chosen to kill herself, though it probably wouldn’t be hard to accomplish, so she must obviously prefer being alive now to being dead, and thus the claim that she would be better off dead is obviously one she does not now believe. Indeed, if this is in fact her claim, it seems almost indubitable that her suit ought to fail outright. However, if she is merely making the claim that she would have been better off dead as an infant, although things have changed since, that may be reasonable (it is structurally the same as Dax Cowart’s famous claim that he should have been killed after his disfiguring accident, to terminate his sense of loss and the excruciating treatments he went through, notwithstanding that he was willing to live afterwards). This does not mean that it is true: it is hard to imagine what was so bad about being an infant with rubella-caused birth defects that is worse than being an adult with the same condition - and, again, if she does not regard that as worse than death now, it is not clear it would have been so earlier. And so, if her condition is not, and was not, literally worse than death, it is not clear how she suffered a harm from being born with that condition, if the only alternative was death.

Anti-assisted suicide activists will also object to these suits, on the grounds that they open the door to legal recognition of claims that there are conditions worse than death - a recognition that could justify legal permission to end those conditions when there is no means of ameliorating them. But this is a question of political strategy - not of morality.

At any rate, “wrongful life” suits have not typically been allowed, because they embroil the state in determinations it is uncomfortable making.

“Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians,” the New York Court of Appeals wrote in a 1986 decision rejecting a similar “wrongful life” claim. “The implications of any such proposition are staggering.”

I don’t know that they are especially “staggering”. They are just difficult to put forward in a logically reasonable way. (If you want to live, your life is not worse to you than death, so you can’t claim you are harmed by being alive if death is the alternative. If your life really is worse to you than death, why are you still living it?) Most (not necessarily all) such suits should fail on straightforward factual grounds. The public policy implications are reached only if we actually take the “wrongful life” claims seriously in the first place, and those implications (that some people really should be dead) are also not “staggering” no matter how much angst the anti-autonomy crowd whips up over them.

I am not glad to see the concept of wrongful life reappearing in the courts, but the issue can be dealth with in a straightforward way. I hope the ruling from the Australian court reaches the issue on its merits.

The Republican Governor of New York has taken to ordering state psychiatric agencies to incarcerate, for the purpose of involuntary psychiatric treatment and indefinite detention, convicted sex offenders who are eligible for release from prison and otherwise show no signs of mental illness and have not undergone a proper, or any, clinical psychiatric evaluation. A State Supreme Court judge has held this is an abuse of the involuntary detention system and a violation of the prisoner/patients’ legal rights.

You would think that would be obvious, but these are perilous times for liberty in whatever form.
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