The Ohio Supreme Court in the US ruled this month that parents may sue on the basis of medical malpractice in the event of negligent genetic counselling or the negligent failure to diagnose a severe or fatal condition in the fetus that would have caused them to seek an abortion. This decision arose in response to the suit of couple whose eight year-old son was born with trisomy 22, a genetic condition that means he is severely disabled.

The childs parents sought genetic counselling and testing prior to his conception, which indicated that the mother had a balanced translocation of chromosomes 11 and 22, putting her at risk of having children with more serious chromosomal disorders. The mother therefore underwent a chorionic villus sampling (CVS) test during pregnancy, which reportedly indicated that the fetus was a female with the same balanced translocation as the mother, which would not cause significant disability. Subsequent ultrasound tests reportedly showed normal fetal development. The parents alleged that because fetal karyotype appeared to match that of the mother, the CVS procedure had sampled maternal rather than fetal tissue. They claimed that the Childrens Hospital Medical Center in Cincinnati had negligently performed and interpreted the diagnostic tests and that they were negligent in their failure to recommend further tests that would have revealed Matthews genetic abnormality (see law report) with the result that they were denied the option to terminate the severely affected pregnancy. They claimed damages for the costs of pregnancy and delivery, of raising and supporting a disabled child, and for the emotional and physical suffering associated with having a severely disabled child.

However, although the court allowed the claim for wrongful birth to stand, it ruled that only those costs associated with pregnancy and birth could be claimed for, overruling a lower court decision that the parents could sue for the additional costs of raising their disabled child over those for raising a normal child. Courts have been reluctant to countenance such claims on policy grounds, particularly claims for wrongful life where an unhealthy child born following negligent genetic counselling or testing argues that he or she has been damaged by being born at all. This reluctance also extends to claims by parents for the financial burden of caring for a severely disabled child where the cause of the disability is genetic in origin. However damages for ongoing care costs as part of a wrongful birth suit have been awarded by a few US states where the disabling condition arose during delivery.