James A. Henderson, Jr.
86 Geo. Wash. L. Rev. 689
American courts currently reject most wrongful life claims—claims that a medical provider’s negligence made it possible for the plaintiff, destined from conception to experience significant genetically derived disability, to be born. Courts give two main reasons for rejecting wrongful life claims. First, because human life is sacred, being born under any circumstances cannot constitute a recoverable injury. And second, even if the “sanctity of human life” does not prevent courts from comparing the values of disabled life and no life at all, the relevant calculations would lie beyond the capacities of courts to accomplish. This Essay suggests two ways around these difficulties. First, the sanctity-of life position should be circumvented by attributing a nonbeliever’s outlook to the hypothetical reasonable person employed on a case-by-case basis to make the necessary life-versus-nonlife cost-benefit analysis. This analysis does not necessarily recommend agnosticism as a belief system in other contexts. But here, secular notions of fairness and efficiency support taking theology out of the picture. And second, in deciding whether a plaintiff’s disability is sufficiently severe to warrant recovery, the court should attach zero value to nonlife and focus on the question of whether, from the plaintiff’s perspective at birth, the detriments of plaintiff’s disabled life outweigh its benefits. The relevant calculations, while often difficult, are not more so than in other traditional areas of tort. This Essay addresses the possibility that courts adopting its approach might relax the suggested legal standards, producing too many wrongful life claims rather than, as now, too few. In that event, courts or legislatures would be required to re-establish the necessary formal boundaries of wrongful life.
