The State of Florida does not recognize “Wrongful Life” as a cause of action, explaining that “the relative value of human existence over human nonexistence is not a matter cognizable under Florida tort law.  There is no right to remain unborn.” Kush v. Lloyd, 616 So. 2d 415, 423 (Fla. 1992).  However, Florida does recognize “Wrongful Birth” as a cause of action. A Wrongful Birth claim is brought by parents of a child born with a genetic or congenital disease claiming that had their physician warned them about the genetic or congenital disease, they would have terminated the pregnancy or would have decided not to conceive at all.

The central policy behind a Wrongful Birth claim is to place the parents in a position nearly equivalent to that which would have existed had the child actually been born in the state of health the parents were led to believe would occur. Id.

The primary damages in a Wrongful Birth lawsuit include “all extraordinary expenses caused by the impairing condition for the duration of the child’s life expectancy.”  616 So. 2d at 424.  “Damages are not gauged against the state of affairs that would have existed had the child never been born” but rather against the state of affairs had the child actually been born in the state of health the parents were led to believe would occur. Kush, 616 So. 2d at 424.  Some birth defects that may lead to a wrongful birth claim include:

  • Holoprosencephaly (HPE) – Holoprosencephaly is a cephalic disorder where the brain does not properly divide into the right and left hemispheres and can lead to severe skull and facial defects.
  • Anencephaly – a type of neural tube defect (NTD) where a baby is born without parts of his brain and skull.
  • Down Syndrome – a genetic disorder where a baby is born with an extra full or partial copy of chromosome 21.
  • Spina Bifida – “Split Spine” in Latin, is a type of neural tube defect (NTD) where the backbone that protects the spinal cord does not form and close.
  • Hypoplastic Left Heart Syndrome – a congenital heart defect in which the left side of the heart is not formed correctly.

Florida does not recognize a Wrongful Birth claim for the birth of a healthy child, because a child’s parents “have the sole obligation of providing the necessaries in raising the child, whether the child be wanted or unwanted.” Fassoulas v. Ramey, 450 So. 2d 822, 823 (Fla. 1984).  Furthermore, the rule in Florida is that a parent is not “damaged” by the birth of a normal, healthy child and therefore cannot recover damages. Id.

While the name “Wrongful Birth” may sound harsh, these claims are brought by parents who seek to recover monetary damages in order to pay for the expensive care and treatment of their disabled child.

If you or a family member have a child with a congenital birth defect you believe should have been diagnosed during pregnancy but was not, you may be entitled to compensation related to your damages in caring for the child’s disability .  Contact Bonner Law at 305-676-8800 for a free consultation.   We have over 30 years of experience representing patients and healthcare providers in medical malpractice litigation.