Smith v. Cote

128 N.H. 231, 513 A.2d 341 (1986)



Rule one: A wrongful birth claim is a claim brought by the parents of a child born with severe defects against a physician who negligently fails to inform them, in a timely fashion, of an increased possibility that the mother will give birth to such a child, thereby precluding an informed decision as to whether to have the child. The parents typically claim damages for their emotional distress and for some or all of the costs of raising the child.


Rule two: The court holds that a parent may recover for his or her ministrations to his or her child to the extent that such ministrations: (1) are made necessary by the child's condition; (2) clearly exceed those ordinarily rendered by parents of a normal child; and (3) are reasonably susceptible of valuation.


Rule three: The court does not recognize a right not to be born, and the court will not permit a person to recover damages from one who has done him no harm.


Plaintiff parent sought damages for emotional distress and the medical and educational costs for plaintiff child. She contended that had she known of the risks that she would have obtained a eugenic abortion. Defendant physicians filed a motion to dismiss for failure to state a claim. The case was transferred with interlocutory questions. The supreme court remanded the case to the district court for further proceedings as to parent's wrongful birth claim and child's wrongful life claim against physicians.


Issue one: Did state law recognize a cause of action for wrongful birth of a willfully conceived child?


Issue two: Did state law allow recovery of damages for emotional distress, extraordinary maternal child care, and the extraordinary medical, institutional, and other special rearing expenses that were necessary to treat the child's impairments?


Issue three: Did state law recognize a cause of action for wrongful life brought by the child?


Answer one: Yes. Answer two: Yes. Answer three: No.


Conclusion one: State law recognized a cause of action for wrongful birth. The court is bound by the law that protects a woman's right to choose to terminate her pregnancy


Conclusion two: The parent was allowed to recover extraordinary medical and educational costs attributable to the child's deformities, but that she could not have recovered ordinary child-raising costs. 


Conclusion three: The judiciary had an important role to play in protecting the privacy rights of the dying. It had no business declaring that among the living were people who never should have been born.

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