Sofia Yakren, ‘“Wrongful Birth” Claims and the Paradox of Parenting a Child with a Disability’

Abstract
… This Article shifts the blame from mothers to the legal system. While wrongful birth proceedings portray mothers’ feelings about their children as categorically negative, real life accounts and social science findings reveal the true paradoxical experiences of all mothers, including plaintiff-mothers raising children with disabilities. To acknowledge this complex reality and mitigate the emotional strain of bringing a wrongful birth claim, this Article proposes several legal reforms: (1) broadening the analysis of emotional distress to reflect and legitimize mothers’ paradoxical feelings about their children; (2) reframing the harm to mothers as loss of reproductive choice rather than as the birth of a flawed child and, accordingly, expanding available economic damages to include plaintiff-mothers’ unexpected childcare responsibilities; and (3) educating plaintiffs’ attorneys to empathize with the emotional aspects of mothers’ litigation experiences and to counsel mothers accordingly. Today’s approach to ‘wrongful birth’ claims, which both stigmatizes disability and strains caretakers, demands urgent reform.

Yakren, Sofia, ‘Wrongful Birth’ Claims and the Paradox of Parenting a Child with a Disability (November 1, 2018). Fordham Law Review, volume 87, 2018.

First posted 2018-12-10 07:02:21

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