These are two types of court actions which, though different, are alike in that they are based on the concept that there are lives "unworthy of life," a concept enunciated by two German professors in 1920. (Permission to Destroy Life Unworthy of Life: Karl Binding, professor of law, Leipzig; Alfred Hoche, professor of psychiatry, Freiburg). Hoche stated that seriously handicapped, learning disabled, and brain-damaged people were "human ballast," and killing them was "an allowable, useful act," of benefit to society.

Some 20 years later, the Nazis carried this theory to its logical conclusion, and killed handicapped children, the mentally ill, gypsies, etc., (and soldiers injured in the war).

Wrongful Birth has been defined as "one in which the parents of a defective child allege that, had the parents been fully informed by the doctor, they would have aborted the fetus, and thus would not have suffered the emotional, financial, and physical trauma of having a defective child" (Rogers, in 33 South Carolina Law Review, 1982).

The first claim for wrongful birth heard in court, was Gleitman v. Cosgrove, 1967, in New Jersey. Mrs. Gleitman contracted rubella during pregnancy and her baby was born with several defects. She claimed that had she been informed of the possible effects of rubella, she would have aborted the child. The court dismissed the case on the grounds that it could not measure the "unmeasurable benefits of parenthood" against the "emotional and financial burden" imposed by the child's defects. The court found a preference for life over non-existence.

Twelve years later in Berman vs. Allen, 1979, Mrs. Berman claimed that she had been denied the opportunity to abort her child with Down's syndrome because her physician failed to tell her about amniocentesis. The court held that since Roe v. Wade in 1973, public policy required that a woman be given a meaningful opportunity to abort her child. The court awarded damages for the parents' emotional anguish and pain.

Impaired life vs. no life

By contrast, wrongful life actions are brought on behalf of the "defective child" and allege that, had the physician informed the parents of the "deformity," he or she would not have been born and would not have to live with a handicap. In 1977, a New York court heard a child's case for damages. The child's parents had been told -- incorrectly --  that her older sister's polycystic-kidney disease was not hereditary. The court ruled that the doctor's negligence violated a fundamental right of a child to be born as a whole, functional human being." A superior court of appeals rejected this ruling, and said that there is no "fundamental right ... to be born whole" at either common or statutory law. The court refused to balance the value of impaired life against no life.

So much concern has been raised by these issues that some states in the U.S. have passed legislation prohibiting legal action based on wrongful birth.

Similar lawsuits against doctors have also been heard in Canadian courts. In a wrongful birth case (December 1996), an Ottawa court ruled that two doctors must pay close to $3 million in damages to the parents of two handicapped children.  A "landmark case" of wrongful life was also heard in the Manitoba Court of Queen's Bench. In the latter case it was the reaction of some ethicists that was most disturbing.

The director of the University of Manitoba's Centre for Applied Ethics, Arthur Schafer, was quoted in the Globe and Mail as saying: "These are very thought-provoking cases. They do indeed challenge the assumption that life in itself has value. They invite us to consider whether certain kinds of life are worse than no life at all. Personally, I'm of the opinion that life is not always a benefit." Then he added: "And our society has determined there is a linkage between the value of life and the quality of life." Mr. Schafer did not define "our society," or "linkage," nor did he say how the linkage had been "determined," let alone proved.

His statement would be flatly denied by many handicapped persons, by the elderly and others whose quality of life might be poor, but whose enjoyment of life, and value of life, are high. The right to protect children from excessively burdensome lives, as suggested by Schafer, can only lead to abortion, euthanasia and infanticide.

We are almost full circle back to Binding and Hoche in 1920. A chilling thought for the future.