The U. S. Constitution and Washington statutes protect the right to choose not to have a child as a fundamental right. When a healthy child is born after contraceptive methods fail due to physician negligence, parents can sue on a "wrongful pregnancy" cause of action. In all jurisdictions recognizing wrongful pregnancy, parents may recover damages for medical expenses associated with pregnancy and childbirth. A controversy exists, however, concerning whether parents may recover the ordinary expenses of child rearing. While some states allow full recovery of these expenses, and other states allow recovery of the economic expense offset by the emotional benefit of parenthood, the overwhelming majority, including Washington, denies recovery of child-rearing expenses on the basis of public policy. By comparing McKernan v. Aasheim, the Supreme Court of Washington decision denying childrearing damages for wrongful pregnancy, with other child-related torts in Washington, this Comment exposes McKernan's erroneous and inconsistent application of tort principles and demonstrates that strict application of tort principles mandates full recovery of child-rearing expenses. Further, the state public policy relied on in McKernan cannot be maintained after the passage of Initiative 120, which declared as Washington public policy that reproductive rights are "fundamental." This Comment argues that child-rearing damages are necessary to deter malpractice and fully compensate parents whose exercise of fundamental reproductive rights has been substantially impaired by physician negligence.
Notes and Comments,
Fundamental Protection of a Fundamental Right: Full Recovery of Child-Rearing Damages for Wrongful Pregnancy,
75 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol75/iss4/4