Wrongful Birth claims are used to seek damages on behalf of any person who claims that, as a result of an act or omission of a defendant, the already conceived person would not or should not have been born. Wrongful Life claims are made on behalf of any person alleging that as a result of an act or omission of a defendant, the person would not have been conceived or, once conceived, would or should have been aborted.

Prior to 1988 in the Commonwealth of Pennsylvania, a parent could bring a Wrongful Birth case if a child was born with disabilities as a result of some negligence on the part of a healthcare provider who was treating the mother during the term of the pregnancy. If the lawsuit was successful, the parents could recover for their emotional distress as well as the costs of raising a severely disabled child. Wrongful Life cases, on the other hand, have never been recognized in Pennsylvania.

In 1988 the state of Pennsylvania passed what was then called the Wrongful Birth and Wrongful Life Act. By that Act actions for damages for both types of cases was legislatively eliminated.

Recently in the case of Sernovitz vs Dershaw et al. the Superior court ruled that the Wrongful Birth and Wrongful Life statute passed in 1988 was unconstitutional. The decision was not based on the substance of the statute but rather on the method by which the statute was originally passed. As result of the action of the Superior Court the law would presently allow Wrongful Birth cases as it did under the law prior to 1988.

The Dershaw case has been appealed and we await final determination by the Supreme Court of Pennsylvania.

Edward Shensky is a Shareholder and member of Stark & Stark’s Yardley, PA office, concentrating in Accident & Personal Injury Law. For more information, please contact Mr. Shensky.