Yes, Virginia, There Can Be Wrongful Life: On Consistency, Public Policy, and the Birth-Related Torts

This article discusses the varying approaches adopted by states with respect to whether to recognize wrongful conception, wrongful birth, and wrongful life, with special attention paid to Virginia jurisprudence both because Virginia has case law supporting the recognition and the non-recognition of a cause of action for wrongful life and because neither the Virginia Supreme Court nor the Virginia legislature has yet addressed that issue. The article suggests that many of the justifications offered for refusing to recognize some of these causes of action (e.g., a desire not to promote abortion) do not support a blanket ban on their recognition but at most a limitation on the contexts in which they might be recognized. The article concludes that states should re-examine their approaches regarding whether to recognize the birth-related torts to make the jurisprudence fairer, more consistent, and more likely to promote good public policy.