Maine Court Rejects “Wrongful Birth” Claim
The Maine Supreme Judicial Court answered a series of certified questions concerning a failed contraception procedure did not form the basis of a “wrongful birth” claim
[The plaintiff] alleg[ed] that in February 2012, at a community health center for which the United States was responsible, a physician negligently failed, as a result of Merck’s defective applicator, to insert into her arm an implant manufactured by Merck that was designed to prevent pregnancy for at least three years…
Doherty claims that she is entitled to damages resulting from injuries that she suffered when the failure of Merck’s product resulted in a non-remarkable pregnancy leading to the birth of her healthy child. That is precisely the claim barred by the very clear language of the statute. Doherty’s argument that the statute applies to the physician who treated her but not to Merck disregards the statute’s declaration that the birth of a healthy child is not a legally recognizable injury ab initio; therefore, it is not actionable against any defendant. As a result, unless the “failed sterilization procedure” exception contained in section 2931(2) and discussed infra applies, Doherty may not recover damages against either Merck or the United States for the birth and expense of raising her healthy child.
The court concluded that the “failed sterilization procedure” exception did not apply.
There was a concurring opinion
The federal court has not asked us to determine whether the wrongful life statute goes beyond declaring that the birth and the life of a healthy child do not constitute damages, that is, legally recognizable injury. 24 M.R.S. § 2931(1) (2016). Nor has it asked us to determine whether, if the statute does go beyond the gender-neutral declaration that a child is not an “injury,” doing so constitutes an unconstitutional violation of a woman’s right to equal protection under the law. Id
Moreover, in light of the questions presented, we are not required to consider whether a person may bring claims of ordinary medical malpractice for any negligent medical care provided to a person who sought medical care to avoid pregnancy as a result of a medical condition. For example, a person who suffers from certain illnesses may be seriously or fatally harmed by a pregnancy. In answering the questions presented, we are not required to consider whether a claim of medical malpractice for contraception failure may proceed in those circumstances. Put another way, those injuries would be factually distinct from the nature of the claim before the federal court related to the birth of an unanticipated but healthy child. In the end, we are not asked to determine whether that type of harm to a person, unrelated to the child, falls outside of the statute’s limitation on negligence actions.
Finally, although we cannot disagree with the Court’s careful parsing of the concepts of “sterilization,” particularly as used in other statutory contexts, it is clear from the lengths the Court goes to in attempting to distinguish various methods of permanent or semi-permanent contraception that medicine has outstripped the statutory definitions and that further attention to the language of 24 M.R.S. § 2931 (2016) is needed.
In sum, we write to clarify that we do not opine on the constitutionality of the statute, and we do not opine on whether a person may maintain a claim for other types of injuries—unrelated to the existence of a healthy child—arising from allegations of medical malpractice in the context of a pregnancy.
(Mike Frisch)