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.38 These wrongful conception cases, however, did not implicate thedecision to abort and did not do very much to change the legal landscape.By the 1980s, however, two powerful forces combined to increase thechances that wrongful birth claims would be filed and would be more palat-able to judges and juries, although the claim still remains controversial andis far from universally recognized.39 On the medical front, advances in scien-tific knowledge about genetic and other risks to fetuses made it possible topredict which women were at a higher risk of giving birth to children withserious disabilities, developments that rendered the reproductive process lessmysterious and inevitable.On the cultural side, the women s movement andits influence on the law made it possible for tort plaintiffs to articulate andassert a right to control their own reproduction and to place responsibilityon doctors who allegedly interfered with such right.Many of the early wrongful birth cases involved women who had con-tracted rubella (German measles) during the first months of pregnancy.Theconnection between rubella and prenatal injury had become widely knownsince 1964, when a rubella epidemic in the United States resulted in 20,000fetal deaths and 30,000 cases of severe birth defects.40 The science indicatedthat the risks of rubella to women in their first trimester of pregnancy wereespecially high: approximately 25 percent of infants born to women in thisgroup had congenital rubella syndrome, which included such serious effectsas microcephaly, mental retardation, and congenital heart defects.41 Giventhe severity of these risks, a strong case could be made that physicians oweda duty to counsel their patients about the dangers of rubella, in line withnorms of informed consent that were also being developed at the time.By the mid-1970s, a new crop of wrongful birth cases appeared, center-ing on a physician s failure to recommend amniocentesis, a test that could beused to detect the presence of Down Syndrome in a fetus.42 Down Syndromeis a nonhereditary genetic disorder characterized by mental retardation anda constellation of physical abnormalities.Physicians began to recommendthe amniocentesis procedure for women over age thirty-five at the date ofCausation | 129 delivery, the age at which the risk of carrying a child with Down Syndromeis roughly equal to the risk of miscarriage caused by the procedure itself,approximately.5 percent.43 These wrongful birth cases, often involving oldermothers and less severely disabled children, formed the backdrop againstwhich sharply contested views about the desirability of the new cause ofaction and the assignment of cause and responsibility played out as the tortwas introduced in the various states.By the late 1990s, the potential for wrongful birth suits in diverse con-texts grew considerably.By that time, there were at least 800 tests availableto diagnose risks to a fetus, including tests for hereditary disorders such asTay-Sachs disease, sickle cell anemia, hemophilia, muscular dystrophy, andcystic fibrosis.44 One common test that emerged in this period, for example,is an AFP blood test, typically conducted in the fifteenth week of pregnancy,that detects certain abnormal levels of protein associated with birth defects.45Because the AFP test has a high rate of false positives, however, physiciansoften must also decide whether to recommend amniocentesis for pregnantwomen who fail the AFP test, at the risk of being charged with negligenceif they unreasonably fail to order the test.The scientific and medical developments of the era were matched in sig-nificance and scope by changing cultural attitudes and social practices relatedto reproduction.Reproductive rights were high on the agenda of women srights organizations, whose members sought to transform the ways physi-cians, employers, and governmental institutions approached pregnancy,motherhood, and the intersection of work and family [ Pobierz całość w formacie PDF ]
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.38 These wrongful conception cases, however, did not implicate thedecision to abort and did not do very much to change the legal landscape.By the 1980s, however, two powerful forces combined to increase thechances that wrongful birth claims would be filed and would be more palat-able to judges and juries, although the claim still remains controversial andis far from universally recognized.39 On the medical front, advances in scien-tific knowledge about genetic and other risks to fetuses made it possible topredict which women were at a higher risk of giving birth to children withserious disabilities, developments that rendered the reproductive process lessmysterious and inevitable.On the cultural side, the women s movement andits influence on the law made it possible for tort plaintiffs to articulate andassert a right to control their own reproduction and to place responsibilityon doctors who allegedly interfered with such right.Many of the early wrongful birth cases involved women who had con-tracted rubella (German measles) during the first months of pregnancy.Theconnection between rubella and prenatal injury had become widely knownsince 1964, when a rubella epidemic in the United States resulted in 20,000fetal deaths and 30,000 cases of severe birth defects.40 The science indicatedthat the risks of rubella to women in their first trimester of pregnancy wereespecially high: approximately 25 percent of infants born to women in thisgroup had congenital rubella syndrome, which included such serious effectsas microcephaly, mental retardation, and congenital heart defects.41 Giventhe severity of these risks, a strong case could be made that physicians oweda duty to counsel their patients about the dangers of rubella, in line withnorms of informed consent that were also being developed at the time.By the mid-1970s, a new crop of wrongful birth cases appeared, center-ing on a physician s failure to recommend amniocentesis, a test that could beused to detect the presence of Down Syndrome in a fetus.42 Down Syndromeis a nonhereditary genetic disorder characterized by mental retardation anda constellation of physical abnormalities.Physicians began to recommendthe amniocentesis procedure for women over age thirty-five at the date ofCausation | 129 delivery, the age at which the risk of carrying a child with Down Syndromeis roughly equal to the risk of miscarriage caused by the procedure itself,approximately.5 percent.43 These wrongful birth cases, often involving oldermothers and less severely disabled children, formed the backdrop againstwhich sharply contested views about the desirability of the new cause ofaction and the assignment of cause and responsibility played out as the tortwas introduced in the various states.By the late 1990s, the potential for wrongful birth suits in diverse con-texts grew considerably.By that time, there were at least 800 tests availableto diagnose risks to a fetus, including tests for hereditary disorders such asTay-Sachs disease, sickle cell anemia, hemophilia, muscular dystrophy, andcystic fibrosis.44 One common test that emerged in this period, for example,is an AFP blood test, typically conducted in the fifteenth week of pregnancy,that detects certain abnormal levels of protein associated with birth defects.45Because the AFP test has a high rate of false positives, however, physiciansoften must also decide whether to recommend amniocentesis for pregnantwomen who fail the AFP test, at the risk of being charged with negligenceif they unreasonably fail to order the test.The scientific and medical developments of the era were matched in sig-nificance and scope by changing cultural attitudes and social practices relatedto reproduction.Reproductive rights were high on the agenda of women srights organizations, whose members sought to transform the ways physi-cians, employers, and governmental institutions approached pregnancy,motherhood, and the intersection of work and family [ Pobierz całość w formacie PDF ]