The Moral Case to Eliminate Wrongful Birth Suits

Recently, it was reported that French television officials refused to air a video detailing the lives of children with Downs Syndrome. The French administrators apparently believed that it would disturb women who chose to abort children who were diagnosed with the genetic disorder. While this censorship is disturbing, what is even more telling is the implicit message that these French bureaucrats give when it comes to the subject of human dignity as found in those individuals who have disabilities: that those with disabilities ought not be born. The French are not alone in this nefarious perception of human dignity. It is found in the United States as well. But what makes the situation even more troubling is that there is little protection for the doctor who conscientiously objects to the abortion of such children.

As just stated, some of this ethos can be found even here in America. For example, the Charlotte Lozier Institute estimated in 2015 that roughly 90-92% of pregnancies with a Downs Syndrome child end in abortion. But this phenomena is not only limited to those cases where an unborn child is diagnosed with Downs Syndrome. Sadly, there are many cases in which unborn children are aborted because they are not believed to be genetically fit for existence. As a result, many states have countered with legislative initiatives, such as Americans United for Life’s Prenatal Nondiscrimination Act, to help restore dignity to the disabled unborn by prohibiting the practice of abortion based on sex selection or genetic abnormalities.

frenchadHowever, in some cases, this type of legislation may not be enough to protect doctors who have a moral objection to the practice of aborting the disabled unborn. That is why many states need to look at prohibiting the practice of wrongful birth suits as well, in addition to the Prenatal Nondiscrimination Act. A good example of this can be found in Texas. At present there is a bill, HB 87, which has been pre-filed by Texas State Representative Matt Schaefer, to amend a current problem within Texas law. In 2013, when HB 2 was passed, there was a provision that mandated that most abortions that occur at 20 weeks gestation or beyond be prohibited. Unfortunately, it allowed for an abortion to take place if “the fetus has a severe and irreversible abnormality, identified by reliable diagnostic procedures” (see Texas Health and Safety Code Section 170.002 (b)(3)). HB 87 seeks to correct this deficiency of justice within the law, but even if it is passed and those unborn children who are saved from the injustice of abortion, the doctor still can face the injustice of a wrongful birth suit.

Firstly, it ought to be stated that the implication of a wrongful birth suit is that the life in question ought not to have been born. This, from a Christian point of view, obviously is ethically problematic. When the law permits such a legal action, it is, in essence, saying that some life is not worthy of living. This obviously contradicts the Church’s teaching on the dignity of the human person (see Catechism of the Catholic Church no. 1700). But furthermore, these types of suits contradict the Church’s teaching on the sanctity of life which clearly states, “Human life must be respected and protected absolutely from the moment of conception. From the first moment of his existence, a human being must be recognized as having the rights of a person – among which is the inviolable right of every innocent being to life” (Catechism of the Catholic Church, no. 2270).

There is little doubt that parents who discover that their unborn child may or will be born with a disability are frightened. Fear, however, should not trump reason. Nor should unreasonable arguments such as “what will the quality of life be for the child” guide the conscience. People who chose death for their unborn children because of a disability tragically say something more about their quality of character and moral judgement. And legislators have the duty to ensure that permissive laws such as these are to be corrected in order to help parents properly guide their consciences.

Even if a state has a law that prohibits the practice of aborting the disabled unborn, it is still possible to sue the doctor if he does not advise the parents regarding the ability of them going to another state to get an abortion. This is why it is necessary to prohibit wrongful birth suits. It is in this way that a doctor can be protected from unjust litigation. Thankfully, Texas also sees the need to do just this and that is why Texas State Senator Brandon Creighton pre-filed Texas SB 25.

But surely proposed legislation such as SB 25 has a deeper impact within the culture. As has been stated in many past articles, law is a great teacher of virtue. It, indeed, has the capacity to help guide individuals to the moral life. It is why the civil law must reflect the moral law. As the Catechism states, “The natural law, the Creator’s very good work, provides the solid foundation on which man can build the structure of moral rules to guide his choices. It also provides the indispensable moral foundation for building the human community. Finally, it provides the necessary basis for the civil law with which it is connected, whether by a reflection that draws conclusions from its principles, or by additions of a positive and juridical nature” (no. 1959). And St. John Paul II, in his genius, recognized this as well within his encyclical, Evangelium Vitae:

It is therefore urgently necessary, for the future of society and the development of a sound democracy, to rediscover those essential and innate human and moral values which flow from the very truth of the human being and express and safeguard the dignity of the person: values which no individual, no majority and no State can ever create, modify or destroy, but must only acknowledge, respect and promote. Consequently there is a need to recover the basic elements of a vision of the relationship between civil law and moral law, which are put forward by the Church, but which are also part of the patrimony of the great juridical traditions of humanity (no. 71).

It is clear that much of the modern culture within the United States has lost this grounding and, as a result, it is necessary to recover these elements as St. John Paul II suggests. As has been mentioned in several other past articles, St. John Paul II proposes the principle of incrementalism as a key ingredient to help society recover its senses. So now the question becomes, how exactly would bills, such as Texas SB 85, help restore a Culture of Life? Firstly, it is clear that it would definitely limit the scope of the doctrine of Roe v. Wade and Doe v. Bolton (abortion on demand and for any reason) by recognizing that doctors are not obligated under the law to suggest or prescribe abortion as a “medical” solution to “help” parents with disabled unborn children. Furthermore, it helps guide public morality in two ways: 1) by acknowledging under the law that every unborn human life, even those that are disabled, have dignity and 2) that the conscience of those doctors who oppose the unjust brutality of abortion must be protected. Clearly, such a ban sends the message that abortion is a forced violence of varying degrees perpetrated not only on the unborn, but on others as well.

Those states which are truly considering passing laws such as the Prenatal Nondiscrimination Act need to also seriously consider passing bans on wrongful birth suits as well. Obviously, Texas sees the prudence and justice in trying to pass both initiatives within the same legislative session. Justice simply dictates that the wrong within the law must be corrected. Not only are disabled children, whether born or unborn, to be cherished, but doctors ought to be protected who know the invaluable worth of these children.

Joe Kral has been involved in the pro-life movement since he has been in college.  His MA in Theology was completed at the University of St. Thomas where he specialized in bioethics.  From 1996-2003 he was the Legislative Director for Texas Right to Life.  During that time he was also a lobbyist for the Department of Medical Ethics at National Right to Life.  From 2004-2007 he consulted the Texas Catholic Conference on pro-life legislative initiatives.   In 2006 he was awarded the “Bishop’s Pro-Life Award for Civic Action” from the Respect Life Ministry in the Diocese of Dallas.  He currently serves as a voluntary legislative advisor to Texas Alliance for Life, is a member of the Fellowship of Catholic Scholars, taught as an adjunct professor of Theology at the University of St. Thomas, teaches as a Forward Toward Christian Ministry instructor for the Archdiocese of Galveston-Houston, is a member of the Knights of Columbus, and is doing doctoral studies at Harrison Middleton University where he is specializing in the ethical and legal theory of St. Thomas Aquinas. He has been married to his wife, Melissa, since 2004 and they have 2 children together. They attend St. Theresa’s Catholic Church in Sugar Land.
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