When Life Is An Injury. An Economic Approach To Wrongfull Life Lawsuits. Burns

Duke University School of Law
When Life Is an Injury: An Economic Approach to Wrongful Life Lawsuits

Author(s): Thomas A. Burns
Source: Duke Law Journal, Vol. 52, No. 4 (Feb., 2003), pp. 807-839
Published by: Duke University School of Law
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Note
WHEN LIFE IS AN INJURY: AN ECONOMIC

APPROACH TO WRONGFUL LIFE LAWSUITS
THOMAS A. BURNS
INTRODUCTION
Can life be an injury?Jurists,theologians,and philosophershave

spilled much ink over this question.'Wrongfulbirth and wrongfullife
lawsuits are frequently debated in courts and academic circles. In
broad overview, wrongfulbirth lawsuits are prenatalnegligence suits
broughtby the parentsof a deformedor retardedchild againsta doc-
tor who negligentlyfailed to diagnose or informthe parentsabout po-
tential birth defects. Wrongful life lawsuits, on the other hand, are
prenatal negligence suits brought on behalf of the deformed or re-
tarded child againsta doctor who negligentlyfailed to diagnose or in-
form the child's parents about potential birth defects. Generally,
courts dismisswrongfullife lawsuitsbecause they fail to perceive that
Copyright@2003by ThomasA. Bums.

1. See, e.g., Becker v. Schwartz,386 N.E.2d 807, 812 (N.Y. 1978) ("Whetherit is better
never to have been born at all than to have been born with even gross deficienciesis a mystery
more properlyto be left to the philosophersand theologians.");AUGUSTINE, THEESSENTIAL
AUGUSTINE 70 (VernonJ. Bourkeed., 1974)(arguingthat understandingis more excellentthan
merelylivingor existing,because"evena stone exists,and a beast lives, yet I do not thinkthat a
stone lives, or that a beast understands[,b]ut he who understandsassuredlyboth exists and
lives"); DAVID HUME, On Suicide, in FOUR DISSERTATIONS; AND, ESSAYS ON SUICIDE AND
THEIMMORTALITY OFTHESOUL1, 21 (photo. reprint2000) (1783) ("I believe that no man ever
threw away life, while it was worth keeping.");FRIEDRICH NIETZSCHE, THEGAYSCIENCE ?
341, at 273-74. (WalterKaufmanntrans.,1974)(1882):
What,if some day or night a demon were to steal afteryou into your loneliest loneli-
ness and say to you:"Thislife as you now live it andhave lived it, you will have to live
once more andinnumerabletimesmore;and there will be nothingnew in it, but every
pain and every joy and every thoughtand sigh and everythingunutterablysmall or
great in your life will have to return to you, all in the same succession and se-
quence ... ."
Wouldyou not throwyourselfdown and gnashyour teeth and curse the demon who
spoke thus? Or have you once experienceda tremendousmoment when you would
have answeredhim:"Youare a god and neverhave I heardanythingmore divine."
808 DUKE LAWJOURNAL [Vol. 52:807
the child has sufferedany legally cognizableinjury:had the doctor not

been negligent,the child would not exist.
This Note contends that wrongfullife lawsuits should be cogni-
zable because,when viewed throughan entitlementmodel, they have
the same economic consequences as wrongful birth lawsuits. To
achieve this end, injuryin wrongfullife lawsuitsshould be conceived
of as a financial injury to the individualchild. When injury is thus
conceptualizedin a narrow,economic sense, the nonexistence para-
dox-comparing injured existence to nonexistence-dissolves. This
reconceptualizationwould justify awardingspecial damagesfor medi-
cal costs and any punitive damagesto the child, but would forbid re-
covery of general damagesfor pain, suffering,and emotionaldistress.
Currently, three courts have reached this result intuitively.2
However, these three courts explicitlyignoredthe nonexistencepara-
dox, essentiallyadmittingthat they preferredan approachof fairness.3
This Note resuscitatestheir conclusion via economic analysisby ex-
plainingthat, in fact, not only is their conclusionboth just and fair, it
also comports with leading economic theory. Thus, to answer the
opening question,life can be a compensableinjury.
To this end, Part I elucidates wrongful life and wrongful birth,
and introducesthe nonexistenceparadox.Part II examinesthe water-
shed cases of wrongfullife and wrongfulbirthjurisprudence.Part III
reviews the wrongfullife literatureand explainswhy attemptsto cir-
cumventthe nonexistenceparadoxhave failed. Part IV introducesthe
entitlement framework.Part V applies the entitlementframeworkto
wrongfullife claimsand redefinesinjury.
I. PRENATAL NEGLIGENCEBACKGROUND
Wrongfullife and wrongfulbirth are the latest developmentsin

prenatal negligencejurisprudence.Initially,in the late 1960s, Ameri-
can law recognized neither parents' wrongful birth claims nor chil-
dren'swrongfullife claims.4Withinten years, however,the law began
2. See infraPartII.F.
3. See Procanikv. Cillo, 478 A.2d 755, 772 (N.J. 1984) (Schreiber,J., dissenting)("Once
one acknowledges,as the majorityhas, that the childhas no causeof actionfor generaldamages
stemmingfromwrongfullife, it is unfairand unjustto chargethe doctorswith the infant'smedi-
cal expenses."(citationomitted));infranotes 86-88 and accompanyingtext; infranote 95 and
accompanyingtext.
4. Gleitmanv. Cosgrove,227 A.2d 689,692,693 (N.J.1967)(holdingthat a childcouldnot
state a claimfor wrongfullife, and thathis parentscouldnot state a claimfor wrongfulbirth).
2003] WHEN LIFE IS AN INJURY 809
to recognize parents' wrongful birth claims.5Until 1982, no state su-

preme court permitted wrongful life lawsuits at all.6 Currently,no
Americanjurisdictionpermitsa child to recover general damages for
wrongfullife lawsuits.7
A. Defining WrongfulLife and WrongfulBirth
Wrongfullife is a unique and controversialkind of prenatalneg-
ligence lawsuit that is usually contrastedwith wrongfulbirth. Wrong-
ful birth claims are brought by the parents (generally the mother)
againstthe doctor who gave prenataltreatmentand negligentlyfailed
to diagnose or inform that the child would probably be retarded or
deformed, thereby denying her the opportunityto abort.8Wrongful
life claims,on the other hand, generallyarise when a child is born de-
formed or retarded and sues his doctor for negligently diagnosingor
informinghis mother about his condition,thereby denying his mother
the opportunityto abort. As a practicalmatter, wrongful life claims
are only broughtwhen the parentsare unavailableto sue for wrongful
birth, as when the parents suddenly die or fail to sue duringthe stat-
ute of limitations.9
It is imperativeto note that in neither wrongfullife nor wrongful
birth lawsuits did the doctor, strictly speaking,cause the child to be-
come deformed or retarded.If, for example, a doctor had negligently
or intentionally prescribed thalidomide to a mother, and this de-
formed or retarded her child, the doctor would be liable to the
mother and the child for ordinaryprenatalnegligence. The real nov-
elty of wrongfullife and wrongfulbirth claims is that the child, tragi-
5. See Becker,386 N.E.2d at 813 (recognizingparents'wrongfulbirth claim for the first

time, but limitingtheir recoveryto medicalexpenses,and forbiddingthem from recoveringfor
psychicor emotionalharm).
6. For the first case to recognizea limitedwrongfullife claim, see Turpinv. Sortini,643
P.2d954,966 (Cal. 1982).
7. Since 2000, the Cour de cassation (France'srough equivalent of the U.S. Supreme
Court)has made headlinesaroundthe worldwith its rapidlydevelopingwrongfullife jurispru-
dence, L'Arr&t Perruche,in whichthe Courde cassationhas recognizeda child'srightto sue his
doctorsto recovergeneraland specialdamagesfor negligentlyfailingto diagnoseor informhis
parents about his potential deformation.Cass. ass. pl6n., Nov. 17, 2000, JCP 2000 II 10,438,
availableat http://www.courdecassation.fr/agenda/arrets/arrets/99-13701arr.htm.
8. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS ? 55, at 370
(5th ed. 1984).
9. E.g., Procanikv. Cillo, 478 A.2d 755, 762 (N.J. 1984) ("Here, the parents'claim is
barredby the statute of limitations.Does this mean that Peter must forego medicaltreatment
for his blindness,deafness,and retardation?We thinknot.").
cally, was alreadycondemnedto a deformedor retardedexistence be-

fore the doctor negligentlyfailed to diagnoseor apprisethe mother of
the child's condition. So, to continue the thalidomide example, in a
wrongfullife or wrongfulbirth claim, the doctor would merely have
been negligentin failingto tell the mother that her previousingestion
of thalidomidemightdeformor retardher fetus.
To summarize,wrongfullife claims are broughtby or on behalf
of children;wrongfulbirthclaims are broughtby or on behalf of par-
ents. Nevertheless, courts treat wrongful life and wrongful birth
claims as having very different conceptual grounds. Since Roe v.
Wade,"o courts have had no difficulty identifying which of the
mother's rights was injured: her constitutional right to choose
whether to carry her fetus to term."Thus, when doctors negligently
fail to diagnose or inform the mother of the child's potential retarda-
tion or deformation,they have injuredthe mother's right to choose.
As a result, it is no longer controversialto awarddamagesto parents
for wrongful birth.12 Wrongfullife, on the other hand, creates enor-
mous conceptualdifficulties,"because the nonexistenceparadoxpre-
vents courts from identifyingany right of the child that has been in-
jured.14 As one court expressed the nonexistence paradox, "[t]he
infant plaintiff is therefore required to say not that he should have
been born without defects but that he should not have been born at
all."'5
10. 410 U.S. 113 (1973).

11. See id. at 163-64 (holdingthat a womanhad a constitutionallyprotectedrightto termi-
nate her pregnancy).
12. See infranotes 60-61, 69 andaccompanyingtext.
13. F. Allan Hanson,Suitsfor WrongfulLife, Counterfactuals, and the NonexistenceProb-
lem, 5 S. CAL. INTERDISC.L.J. 1, 4 (1996):
[S]uits for wrongfullife pose a dilemma.On the one hand are issues of common
sense, compassion,and fairness.The negligentbehaviorof the defendanthas caused
preventablemedicalexpenses,pain, and suffering.It seems entirelyjust to fix the re-
sponsibilityfor the injuryand to allowa remedyfor the tragedy.On the otherhand,it
is conceptuallyproblematicin wrongfullife cases to conclude that the defendant
caused the plaintiffinjuryand to exact compensationwhen, but for the defendant's
conduct,the plaintiffwouldnot exist.
14. See, e.g., infra notes 48-49 and accompanyingtext (describingone court'sattemptto
ascribea fundamentalright to childrento be born as a whole, functionalhumanbeing);infra
PartIII.A (describingJudgeHandler'sadequateparentingtheory).
15. Gleitmanv. Cosgrove,227 A.2d 689,692 (N.J. 1967)(emphasisadded).
B. TheNonexistenceParadox
In all negligence actions, plaintiffs must plead and prove four
elements: duty, breach, causation, and injury.16 In wrongful life and
wrongfulbirth lawsuits,courts have no difficultyfinding or accepting
that (1) the doctor had duties running toward both the mother and
the fetus, (2) the doctor breached those duties, and (3) if the doctor
had not breachedthose duties, the mother would have abortedthe fe-
tus.'7 However, the injury element is the real stumbling block for
courts,and gives rise to the nonexistenceparadox.
The nonexistence paradox,simply stated, is that that the child is
claiming that it is an injury for him to be alive-that his very life is
wrongful. Courts have addressed this concern in various ways. At
first, because the general rule in tort when calculatingdamages is to
make the plaintiff whole (i.e., return him to his former condition),
courts dismissedwrongfullife lawsuitsbecause damageswere impos-
sible to calculate.'"This is because calculatingdamagesrequiredcom-
paring the child's injuredexistence with nonexistence, and determin-
ing which was better and by how much. However, the impossibility-
of-calculationrationale fell into disfavor,so subsequent courts justi-
fied their dismissalof wrongfullife lawsuitsbecause there was no "le-
gally cognizable injury,"in addition to the immeasurabledamages.'9
Finally, the impossibility-of-calculationrationale was entirely aban-
doned, and courts rejected wrongfullife lawsuitssimply because they
refused to recognizethat the child had suffereda legal injury.20
Using these policy reasons, courts have refused to find an injury
because they wished to protect the sanctity of life,21and because, as
mortaljudges, they felt that they lacked the competence to compare
16. KEETONETAL., supra note 8, ? 30, at 164-65.

17. See, e.g., Alan J. Belsky,Injuryas a Matterof Law:Is This the Answerto the Wrongful
Life Dilemma?,22 U. BALT.L. REV.185, 205-23 (1993) (explaininghow the traditionaltort
frameworkappliesto wrongfullife lawsuits).
18. Gleitman,227 A.2d at 692.
19. Beckerv. Schwartz,386 N.E.2d807, 812 (N.Y. 1978).
20. Bermanv. Allan, 404 A.2d 8, 12 (N.J. 1979) (rejectingthe impossibility-of-calculation
rationale,but still denyinga wrongfullife claimbecauseof the "differentpremise-that Sharon
has not sufferedany damagecognizableat law by beingbroughtinto existence").
21. See, e.g., id. ("One of the most deeply held beliefs of our society is that life-whether
experiencedwith or withouta majorphysicalhandicap-is more preciousthannonlife.").
deformed existence to nonexistence.22 Even the few courts that have

permitted children to recover special damages in wrongfullife law-
suits have denied general damagesbecause of the nonexistencepara-
dox.23
II. THE GROWTH OF WRONGFUL LIFE AND

WRONGFUL BIRTH JURISPRUDENCE
Wrongfullife and wrongful birth have had turbulentformative

years. Initially, neither claim was recognized. Then, wrongful birth
was recognized,but not wrongfullife. Finally,three courtsrecognized
limited wrongful life claims to recover special damages. This Part
tracesthe judiciallife cycle of wrongfullife and wrongfulbirth.
A. Conception:Zepeda v. Zepeda
An Illinois appellate court heard the first wrongfullife claim in
the world in Zepeda v. Zepeda.24A grown man sued his father for
being "born an adulterinebastard."25 Previously,his father had "in-
duced the plaintiff'smother to have sexual relationsby promisingto
marryher."26However, the father broke this promise because he was
alreadymarriedto anotherwoman.27
22. Becker,386 N.E.2d at 812. Of course,judges and commentatorscriticizethese ration-

ales. Procanikv. Cillo,478 A.2d 755, 765 (N.J.1984)(Handler,J., concurringanddissenting):
[T]he Courtitself need not expressa preferenceof life over nonlife but only under-
standthatindividualsin necessitoussituationshave the rightto make that choice.We
shouldacknowledge,therefore,that in determiningwhetherthe afflictedinfanthas a
cause of actionfor wrongfullife, the Courtis neithercompellednor asked to assume
a Hamletrole.
MichaelB. Kelly, TheRightfulPositionin "WrongfulLife"Actions,42 HASTINGS L.J.505,
527 (1991) (suggestingthat courts use "the injuryargumentto mask [their]underlying
policyconcerns").
23. Turpinv. Sortini,643 P.2d 954, 963-64 (Cal. 1982);Harbesonv. Parke-Davis,Inc., 656
P.2d483,496 (Cal. 1983);Procanik,478 A.2d at 763.
24. 190 N.E.2d849, 852 (Ill. 1963) (quotingan expertwho could not find any similarclaim
havingever been raisedanywhere).The courtalso coinedthe phrase"wrongfullife."Id. at 858.
25. Id. at 851. The plaintiffsued for damages"forthe deprivationof his right to be a le-
gitimatechild, to have a normalhome, to have a legal father,to inheritfrom his father,to in-
heritfromhis paternalancestorsandfor beingstigmatizedas a bastard."Id.
26. Id.
27. Id.
Although the Zepeda court recognized that the father had duties
runningto his son (even before the son came into being),28the court
dismissed the claim because it feared that many illegitimate children
might bring suit, which would overwhelm the court system.29More
importantly,the court worried that many circumstancesinto which
childrenwere born would be consideredinjuries.' For these reasons,
the court felt that the legislaturewas a more appropriateforum than
the judiciaryto recognizeclaimsfor wrongfullife.31
The Zepeda court's analysisis fascinatingin light of subsequent
wrongfullife jurisprudence:it never squarelyaddressedthe nonexist-
ence paradox.32 Moreover, the court concluded that the plaintiff had
suffered an injury.33Thus, the court found that all the elements of a
tort had been satisfied, but still dismissed the claim." In retrospect,
this outcome is remarkable.Subsequent courts denied wrongful life
claims because no tort occurred-not because a tort had occurred,
but other policy reasonsforbadethem from recognizingit.
B. Gestation:Gleitmanv. Cosgrove
Gleitmanv. Cosgrove35was the first traditionalwrongfullife and
wrongful birth lawsuit. Jeffrey Gleitman's mother consulted doctors
when she was two months pregnant.36Although she informed them
that she had been diagnosedwith Germanmeasles (i.e., Rubella) one
28. Id. at 853-55 (analyzing three hypothetical prenatal torts in which the duty was
breachedbefore the child was conceived,and concludingthat duties run to fetuses before con-
ception).
29. Id. at 858 (suggestingthat there were as many as 250 thousandillegitimatechildren-
potentialplaintiffs-in the United Statesin 1960alone).
30. Id. ("One might seek damagesfor being born of a certaincolor, anotherbecause of
race; one for being born with a hereditarydisease, another for inheritingunfortunatefamily
characteristics;one for being born into a large and destitute family,anotherbecause a parent
has an unsavoryreputation.").
31. Id. at 859:
If we are to have a legal action for such a radicalconcept as wrongfullife, it should
come after thoroughstudy of the consequences.... The interest of society is so in-
volved, the actionneeded to redressthe tort could be so far-reaching,that the policy
of the State shouldbe declaredby the representativesof the people.
32. See id. at 857 (omittingany discussionof the nonexistenceparadoxor sanctityof life
concerns).The court's omission is surprisingbecause, although the Zepeda court may have
plantedthe seeds for latercourts'holdings,thingscouldhave turnedout verydifferently.
33. Id. ("Childrenborn illegitimatehave sufferedan injury.If legitimationdoes not take
place, the injuryis continuous.If legitimationcannottake place, the injuryis irreparable.").
34. Id. at 857-58.
35. 227 A.2d 689 (N.J. 1967).
36. Id. at 690.
month earlier,37the doctors negligently informed her that "the Ger-

man measles would have no effect at all on her child."38Jeffrey was
born blind and deaf.9 Had Jeffrey'smother known the probabilities,
she would have aborted."
The court denied Jeffrey'swrongfullife claim because it was im-
possible to measureJeffrey'sdamages.41It is imperativeto recognize
that, although the court noted the nonexistence paradox,42it dis-
missed the claim not because Jeffrey did not suffer any injury, but
simplybecause it felt that courts and juries lacked the competence to
calculate Jeffrey's damages accurately.43 The court held that Jeffrey
had no "damagescognizableat law,""as opposed to later courts that
would hold that the plaintiffsufferedno injurycognizableat law.
The court likewise denied the parents'wrongfulbirthclaim,even
though they "[stood] in a somewhat different position,"45because it
was impossibleto measuretheir damages.46The court also justifiedits
wrongful birth holding on the grounds of administrabilityand the
"countervailingpublic policy supportingthe preciousnessof human
life."47
37. Id.
38. Id.
39. Id.
40. Id. at 691.
41. Id. at 692 ("Theinfantplaintiffwould have us measurethe differencebetween his life
with defects againstthe uttervoid of nonexistence,but it is impossibleto make such a determi-
nation.").
42. Id. at 692 ("The infant plaintiffis thereforerequiredto say not that he should have
been born without defects but that he should not have been born at all.");see also id. at 711
(Weintraub,C.J.,dissentingin part) ("Ultimately,the infant'scomplaintis that it wouldbe bet-
ter off not to have been born.Man,who knowsnothingof deathor nothingness,cannotpossibly
know whetherthatis so.").
43. Id. ("[I]tis impossibleto makesucha determination.").
44. Id. (emphasisadded).
45. Id. The positionwas differentbecause"Mrs.Gleitmancan say that an abortionwould
have freedher of the emotionalproblemscausedby the raisingof a childwithbirthdefects;and
Mr. Gleitmancan assert that it would have been less expensive for him to abort ratherthan
raisethe child."Id. at 692-93.
46. Id. at 692 ("[A] courtwould have to evaluatethe denialto [the parents]of the intangi-
ble, unmeasurable,and complex human benefits of motherhoodand fatherhoodand weigh
these againstthe allegedemotionalandmoneyinjuries.").
47. Id. at 693 ("Therightto life is inalienablein our society.... A childneed not be perfect
to have a worthwhilelife.").
C. TheBirthof WrongfulBirth:Becker v. Schwartz

In Park v. Chessin,48a lower New York court startlinglyfound
that a child had the "fundamentalright... to be born as a whole,
functional human being."49In Becker v. Schwartz,sothe consolidated
appeal,5 doctors negligently failed to inform one mother that, be-
cause she was thirty-sevenyears old when she conceived, her children
were more likely to have Down's syndrome.52 Other doctors negli-
gently informed another mother that her chances of giving birth to a
second child afflictedwith fatal polycystickidney disease were "prac-
tically nil."53Both mothers then gave birth to children with birth de-
fects.54Had they been properlyinformed,the first mother would have
aborted,and the second motherwould have never conceived."
The Becker court dismissedthe resultingwrongfullife claims be-
cause (1) the plaintiffssuffered no legal injury,and (2) the plaintiffs'
damageswere impossibleto measure.The court expresslydisavowed
the Park court'sbold holding.5" In what has since become perhapsthe
most quoted passage in wrongfullife jurisprudence,the Becker court
cited sanctity of life concerns intertwined with its complaint that
courts lack competence to administratethe complaintsas the reasons
for its decision:
Whetherit is betterneverto havebeenbornat all thanto havebeen
bornwitheven grossdeficienciesis a mysterymoreproperlyto be
left to the philosophersandthe theologians.Surelythe law can as-
sert no competenceto resolvethe issue,particularly in view of the
very nearly uniform high value which the law and mankindhas
placed on human life,rather than its absence.5
48. 400 N.Y.S.2d110 (N.Y. App. Div. 1977).

49. Id. at 114.
50. Beckerv. Schwartz,386 N.E. 2d 807 (N.Y. 1978).
51. Parkwas consolidatedon appealwith Beckerv. Schwartz,400 N.Y.S.2d119 (N.Y. App.
Div. 1977), and the Courtof Appeals of New York reconsideredPark's holdingthe following
year.Becker,386 N.E.2dat 809.
52. Becker,386 N.E.2dat 808.
53. Id. at 809.
54. Id.
55. Id. at 810.
56. Id. at 812 ("Thereis no precedentfor recognitionat the AppellateDivision of 'the fun-
damentalright of a child to be born as a whole, functionalhumanbeing."'(quotingPark, 400
N.Y.S.2dat 114)).
57. Id.
Damages were impossible to measure because the wrongful life

claims at issue required courts to make "a comparisonbetween the
Hobson's choice of life in an impairedstate and nonexistence."58 The
court felt that "the law [wa]s not equipped to make""this compari-
son.
However, the Becker court was cognizantof Roe v. Wade,60 so it
permittedthe parents'wrongfulbirth claims.6'Nevertheless,although
the parentscould recover special damages,the court forbade the par-
ents from recovering "for psychic or emotional harm."62That is be-
cause the parents,as parents,would receive offsettingbenefits.63
In short, although the wrongfulbirth legal theory experienced a
very troubledlabor,it was finallyplaced into the world.
D. The TenderToddlerYears:Bermanv. Allan
In Berman v. Allan,64the Supreme Court of New Jersey recon-
sidered Gleitman.65
Doctors negligentlyfailed to inform SharonBer-
man's mother about the availability of an amniocentesis test that
would have detected whether Sharonwas afflictedwith Down's syn-
drome.66Her mother would have aborted had she known Sharonwas
afflictedwith Down's syndrome.67
The Berman court rejected Sharon's wrongful life claim, but
abandoned Gleitman's difficulty-of-measuring-damagesrationale.68
58. Id.
59. Id.
60. 410 U.S. 113 (1973).
61. Unlike the child's complaint,the parents' damageswere ascertainable.Becker, 386
N.E.2d at 813 (definingthe parents'damagesas "thepecuniaryexpense whichthey have borne,
and in Beckermustcontinueto bear,for the care and treatmentof theirinfants,"anddifferenti-
ating these damagesfrom the child'sdamagesbecause "[c]alculationof damagesnecessaryto
make plaintiffswhole in relationto these expendituresrequiresnothingextraordinary").
62. Id.
63. Id. at 814 ("[P]arentsmay yet experiencea love that even an abnormalitycannotfully
dampen.To assessdamagesfor emotionalharmenduredby the parentsof sucha childwould,in
all fairness,require considerationof this factor in mitigationof the parents'emotional inju-
ries.").
64. 404 A.2d 8 (N.J. 1979).
65. Id. at 10.
66. Id.
67. Id.
68. Id. at 12 ("Difficultyin the measureof damagesis not ... our sole or even primarycon-
cern.").
Instead, the court held that Sharon suffered no injuryat law because
it wanted to preservethe sanctityof life.6
E. FirstWords:Curlenderv. Bio-Science Laboratories
In 1980, a Californiaappellate court took another bold step in
wrongfullife jurisprudencein Curlenderv. Bio-ScienceLaboratories.70
Shauna Curlenderwas born with Tay-Sachsdisease and had a four-
year life expectancy because Bio-Science negligently failed to detect
that her parents were potential carriers of this hereditary disease.71
Had Bio-Science detected this disease, the Curlenderswould have ei-
ther avoided conceivingShaunaor aborted.72 The parentsand Shauna
sued for medical expenses, emotional distress, and the deprivationof
"72.6years of her life."73
In permitting recovery for wrongful life, the court almost ex-
pressly admittedthat it was ignoringthe intellectual consequences of
the nonexistenceparadox:
Therealityof the "wrongful life"conceptis thatsucha plaintiffboth
existsandsuffers,dueto the negligenceof others.It is neitherneces-
sarynorjustto retreatinto meditationon the mysteriesof life. We
need not be concernedwiththe fact that had defendantsnot been
negligent,the plaintiffmightnot havecomeinto existenceat all....
[A] reverentappreciation of life compelsrecognitionthat plaintiff,
howeverimpairedshe maybe, has come into existenceas a living
personwithcertainrights.74
The court tailored damages to allow the child to recover general and
special damagesfor the pain and sufferingshe experiencedduringher
actual life span.75Moreover, the court also permittedthe child to re-
69. Id. ("One of the most deeply held beliefs of our society is that life-whether experi-
enced with or withouta majorphysicalhandicap-is more preciousthan nonlife.").Neverthe-
less, the court was cognizantof Roe v. Wade,410 U.S. 113 (1973), so it upheld the parents'
wrongfulbirth claims. Berman,404 A.2d at 14. Although admittingthat measuringdamages
wouldbe troublesome,the courtrefusedto follow Becker,and permittedthe parentsto recover
generaldamagesfor their wrongfullife claims.Id. at 15. Nevertheless,the court,citing windfall
concerns,refusedto let the parentsrecoverspecialdamagesfor medicalexpenses.Id. at 14.
70. 165 Cal. Rptr.477 (Cal. Ct. App. 1980).
71. Id. at 480-81.
72. Id. at 480.
73. Id. at 481.
74. Id. at 488.
75. Id. at 489.
818 DUKE LAWJO URNAL [Vol. 52:807
cover punitive damages in wrongful life lawsuits.76However, as the

short life span of this opinion attests, the court went too far. The
Curlendercourt suggested that parents should also be potential de-
fendants in wrongful life lawsuits.7 This case ultimately sowed the
seeds for the highest courts of California,Washington,and New Jer-
sey to allow childrento recover special damagesin wrongfullife law-
suits,while forbiddingrecoveryof general damages.
F. TheAdolescenceof WrongfulLife:Turpinv. Sortini,Harbesonv.
Parke-Davis,Inc., and Procanikv. Cillo
1. California.The SupremeCourt of Californiafirst considered

wrongfullife in Turpinv. Sortini,78 in which a doctor negligentlydiag-
nosed a couple's first child as having hearingwithin normallimits;in
fact, the child was stone deaf, and the condition was hereditary.79 Re-
lying on this diagnosis,the couple conceived and gave birth to a sec-
ond child, who was also afflicted with deafness."The child sued for
special and general damages.8'
Initially, the court criticized Curlenderfor obscuringthe differ-
ence between ordinary prenatal negligence and wrongful life law-
suits."2By failing to take the nonexistence paradoxinto account, the
Turpincourt reasoned, the Curlendercourt failed to award proper
damages.83 Nevertheless, the Turpincourt also had strong words for
other old-fashioneddecisions:
76. Id. at 490.

77. Id. at 488 (suggestingthat if parentsconsciouslychose to proceed with a pregnancy
while knowingthat their infant would be born seriouslyimpaired,parentsshould be liable in
tort to their children).Of course,this is troubling,becauseRoe gives mothersa constitutionally
enshrinedright to make a largelyunfetteredchoice whetherto carrya fetus to term.410 U.S
113, 153 (1973) ("Thisright of privacy... is broad enough to encompassa woman'sdecision
whether or not to terminateher pregnancy.").If motherswere to face potential liabilityfor
choosingto give birth,thisconstitutionallyprotectedchoice wouldno longerbe free.
78. 643 P.2d954 (Cal. 1982).
79. Id. at 956.
80. Id.
81. Id.
82. Id. at 961.
83. See id.:
Because nothing defendantscould have done would have given plaintiffan unim-
paired life, it appearsinconsistentwith basic tort principlesto view the injuryfor
which defendantsare legally responsiblesolely by reference to plaintiff'spresent
conditionwithouttakinginto considerationthe fact that if defendantshad not been
negligentshe wouldnot have been bornat all.
Althoughit is easyto understand andto endorsethesedecisions'de-

sire to affirmthe worthand sanctityof less-than-perfect life, we
questionwhetherthese considerations alone providea soundbasis
for rejectingthe child'stort action.To beginwith,it is hardto see
how an awardof damagesto a severelyhandicappedor suffering
childwould"disavow"the valueof life or in any way suggestthat
the childis not entitledto the full measureof legal and nonlegal
rightsandprivilegesaccordedto all membersof society.84
The court therefore fashioned a middle ground, permittingthe child
to recoverspecial damages,but not general damages.85
Judge Mosk immediatelyseized on this discrepancy,complaining
that the majority opinion was "internallyinconsistent"86 because it
failed to "suggest[any]principleof law that justifiesso neatly circum-
scribing the nature of damages suffered as a result of a defendant's
negligence."87The court effectively overruled Curlender,and Judge
Mosk wished to continuewith the Curlenderrule.88
2. Washington.The Supreme Court of Washington followed

California'slead in Harbeson v. Parke-Davis,Inc.89The court found
Turpin highly persuasive in considering the Harbeson children's
wrongful life claim, particularlywith regard to the rationale for
awardingspecial damages."Moreover,in addition to wishing to allo-
cate these costs to the negligent doctors, the Harbeson court also
84. Id. at 961-62.

85. Id. at 965-66:
[I]t wouldbe illogicaland anomalousto permitonly parents,and not the child, to re-
cover for the cost of the child's own medical care. If such a distinctionwere estab-
lished, the afflictedchild's receipt of necessarymedicalexpenses might well depend
on the whollyfortuitouscircumstanceof whetherthe parentsare availableto sue and
recover such damagesor whetherthe medicalexpenses are incurredat a time when
the parentsremainlegallyresponsiblefor providingsuchcare.
86. Id. at 966 (Mosk,J., dissenting).
87. Id. (Mosk,J., dissenting).
88. Id. (Mosk, J., dissenting)("I see no persuasivereason to either abandon[Curlender's]
doctrine,or to diluteits effectivenessby limitingrecoveryto specialdamages.").
89. 656 P.2d483 (Wash.1983).
90. Id. at 495:
The child'sneed for medicalcare andother specialcosts attributableto his defect will
not miraculouslydisappearwhen the child attains his majority.In many cases, the
burdenof those expenseswill fall on the child'sparentsor the state. Ratherthan al-
lowing this to occur by refusingto recognizethe cause of action, we prefer to place
the burdenof those costs on the partywhose negligencewas in fact a proximatecause
of the child'scontinuingneed for suchspecialmedicalcare and training.
wished to deter negligent doctors."9Finally,the court remainedcogni-

zant of the nonexistence paradox;that is why it only granted special
damages,and not generaldamages."
3. New Jersey.In Procanikv. Cillo,93the SupremeCourtof New
Jersey concluded that a wrongful life plaintiff could recover special
damages, but not general damages.94 In reaching this conclusion,the
court was especiallypersuadedby Turpin'semphasison fairness:
Lawis morethanan exercisein logic,andlogicalanalysis,although
essentialto a systemof orderedjustice,shouldnot becomean in-
strumentof injustice.Whateverlogicinheresin permittingparents
medicalcareincurredby a
to recoverfor the cost of extraordinary
birth-defective but
child, in denyingthe ownrightto recover
child's
those expenses,mustyield to the inherentinjusticeof that result.
The rightto recoverthe oftencrushingburdenof extraordinary ex-
pensesvisitedby an act of medicalmalpractice shouldnot depend
on the "whollyfortuitouscircumstance of whetherthe parentsare
availableto sue."95
G. CullingWrongfulLife Themes
The vast majorityof Americanjurisdictionscontinue to dismiss
wrongfullife lawsuitsbecause they fail to discernan injury.However,
three maverick courts permit limited wrongful life claims that deny
recoveryof general damages(which include pain, suffering,and emo-
tional distress)while grantingspecial damages(whichincludemedical
expenses).9 The elements of such wrongful life claims appear to be
that a doctor breacheda duty to the child by negligentlydeprivingthe
mother of the opportunityto abort, and that this deprivationcaused
injuryto the child because the motherwould have abortedbut for the
doctor's negligence. Nevertheless, these maverick courts permit
wrongfullife claims purely on the basis of intangiblenotions of fair-
91. Id. at 496 ("Impositionof a correspondingduty to the childwill similarlyfoster the so-
cietal objectivesof geneticcounselingand prenataltesting,and will discouragemalpractice.").
92. See id. ("We agree .. that measuringthe value of an impairedlife as comparedto
nonexistenceis a task that is beyond mortals,whetherjudges or jurors.However,we do not
agreethat the impossibilityof valuinglife andnonexistenceprecludesthe actionaltogether.").
93. 478 A.2d 755 (N.J. 1984).
94. Id. at 757.
95. Id. at 762 (quotingTurpinv. Sortini,643 P.2d954, 965 (Cal.1982)).
96. None of the threecourtsaddressedwhetherpunitivedamagesshouldbe available.
ness, failing to recognize that their conclusions also comport with

leading economic theory.
III. FAILED ATTEMPTSTO CIRCUMVENTTHE
NONEXISTENCE PARADOX
Scholarshave made several interestingand intriguingattemptsto

circumventthe nonexistence paradox,but all have failed to convince
a court to adopt their approach. Among these suggestions are (1)
holding doctors strictlyliable, treatingwrongfullife like ordinarypre-
natal negligence, treating wrongful life as a misrepresentationcase,
and treatingwrongfullife like an injuredparentingcase; (2) analogies
to end-of-life lawsuits and blending wrongful life with family law
remedies; and (3) making the child's claim parasiticon the parents'
wrongfulbirthclaim.This Part explores such approachesand explains
the shortcomingsof each.
A. StrictLiability,OrdinaryPrenatalNegligence,Misrepresentation
Law Analogy, and ImpairedParentalCapacity
One authorsuggestsimposingstrictliabilityon doctors "who dis-
seminate avoidably inaccurate genetic information."' Strict liability
entails "liabilitywithout fault."98
The benefit of this approachis that it
would reduce the child's burden of proving that his life is an injury,
and prevent courtsfrom trippingover the metaphysicalparadox.
Another writer suggests treating wrongful life lawsuits as any
other ordinaryprenatal negligence lawsuit."He essentially suggests
treating injury as a thing-in-itselfthat happens apart from the plain-
tiff.10Thus, a doctor's breach of his duty can be said to proximately
cause a case of Tay-Sachsdisease or deafness to have come into be-
ing. The child then gets to recover general damagesfor these injuries-
in-themselves, after the injuries are reattached to the plaintiff. The
commentatorbelieves that "[o]ne importantadvantageof the focus in
this analysison impairments,and especially its avoidance of the non-
97. Belsky,supranote 17, at 248.

98. KEETONETAL., supra note 8, ? 75, at 534.
99. Hanson, supra note 13, at 17 ("The most direct way to deal with the nonexistence
problemis to accept it at face value and to hold that, for certainplaintiffs,never havingbeen
bornreallywouldbe preferableto living.").
100. Id.
existence paradox,is that actions can also be intelligiblybroughtfor

impairmentsnot so severe as to make life not worthliving."'1'
ProfessorMichael Kelly suggests using misrepresentationlaw to
addresswrongfullife claims:"Borrowingfrom misrepresentationlaw,
courts could seek to put the plaintiff in the position she would have
occupied if the counselor's diagnosis had been correct-as a child
who does not sufferfrom genetic impairments.''102
Finally,JudgeHandlerin his opinions has consistentlyadvocated
a theory of impairedor diminishedparentalcapacity,to establishthat
the child has suffered an ascertainableinjury.103 Essentially, parents
become so depressedafter unexpectedlydiscoveringthat their child is
deformed or retarded, that they become incapable of effective par-
enting. Judge Handler views the child's injuryas potentiallyparasitic
on the parents'injury.14
Although these solutions are novel, the common shortcomingof
all these approachesis that they merely allocate the entire loss to the
doctor, thereby transformingdoctorsfrom medical servicesproviders
into insurers.Doctors are not capable of guaranteeingperfect chil-
dren. There are many situationsin which doctors would not breach
the standardof medical care, but children would still be born with
birthdefects. When doctors have not breachedthe standardof medi-
cal care, they should not be held liable for the damages that proxi-
mately result. It would be unfair to hold doctors fully liable for inju-
ries they did not create, and would tend to overdeter doctors. The
doctor'snegligence caused the infant to come into being, but the doc-
tor's negligence did not cause the child to develop and sufferfrom a
particulardisease or deformity.To force doctors to pay general dam-
ages for conditionsthey did not cause is inappropriate.1?5
101. Id. at 23.

102. Kelly,supranote 22, at 525.
103. Procanikv. Cillo,478 A.2d 755, 767 (N.J. 1984)(Handler,J., concurringand dissenting)
("Not only must [parents]deal with the unanticipatedshock of discoveringthat their child is
handicapped,but also they must cope with the belief that but for their failureto decide their
child'sfate they mighthave sparedthe childa life of affliction.");Bermanv. Allan, 404 A.2d 8,
19 (N.J. 1979) (Handler,J., concurringand dissenting)("[T]heinjuryconsistsof a diminished
childhoodin being born of parentskept ignorantof her defectivestate while unbornand who,
on that account,were less fit to acceptand assumetheirparentalresponsibilities.").
104. Berman,404 A.2d at 19 (Handler,J., concurringand dissenting)("Plausibly,the child's
injuryand loss in the form of diminishedchildhoodcan be viewed as a derivativeclaim based
solely on the parents'injury.").
105. Additionally,JudgeHandler'sapproachwouldrequirethe problematicrecognitionof a
rightto adequateparenting.
B. End-of-Lifeand FamilyLaw Analogies

Several commentatorssuggest that courts should treat wrongful
life cases like end-of-life cases because both categories of plaintiffs
possess similar interests.'" The principle end-of-life case to which
wrongfullife is comparedis In re Quinlan.107Quinlancreated the sub-
stituted judgment doctrine, which allowed family members or other
legal guardiansto choose whether an individualin a vegetative state
would choose to discontinue life support.'?sWrongful life scholars
contend that this rule should be extended to wrongful life lawsuits,
because it shows an example of when the state's interest in preserving
life is overriddenby other concerns.'" Moreover, as Professor Kelly
contends,it is easier to choose nonexistencethan death.110
Professor Philip Peters suggests using ethic-of-care-basedfamily
law rather than justice-basedtort law."' This theory purportsto ex-
plain the "unprincipled"results of Turpin,Harbeson, and Procanik
by viewing the special damages remedy "as a rough form of supple-
mental child supportratherthan as compensatorydamages.""2
106. E.g., Belsky,supranote 17, at 223-34; Kelly,supranote 22, at 537-49. Ironically,other

commentatorswho specializein end-of-life cases also make the same comparison.However,
they concludethat the two situationsare different,becausethey do not wantend-of-lifecases to
be treated like wrongfullife cases-the blade cuts both ways. End-of-lifescholarsdistinguish
wrongfullife for its lack of an equivalenttreatmentof patientautonomy.See Philip G. Peters,
Jr., The Illusion of Autonomyat the End of Life: UnconsentedLife Supportand the Wrongful
Life Analogy,45 UCLA L. REV.673, 692 (1998) ("[W]rongfullife cases containno equivalent
exerciseof patientautonomy.The sanctityof life argumentis, therefore,qualitativelyweakerin
the end-of-lifecases.").
107. 355 A.2d 647 (N.J. 1976) (holdingthat a patient'sprivacyrightstrumpthe state'sinter-
est in preservinghis life).
108. Id. at 666.
109. See, e.g., Belsky,supranote 17, at 227 (questioningwhy courtsand legislaturesrespect
the autonomyof patientswho choose to end life support,but not that of handicappedchildren,
becausethe "livingpatientis no more capableof concludingthat death is preferablethanis the
handicappedchild... capableof decidingthatnonlifeis preferableto life withdisability").
110. Kelly,supranote 22, at 542-43:
Whetherbecauseof our biologicalor genetic wiringor our trainingfrom birth,dying
seems muchharderto acceptthan never havingbeen born.Nonexistence,never hav-
ing lived, seems mild by comparisonto death.... A rational person might prefer
never to have been born,yet elect to continuelivingratherthanface dying.
111. Philip G. Peters, Jr., RethinkingWrongfulLife: Bridgingthe BoundaryBetween Tort
and Family Law, 67 TUL.L. REV.397, 399 (1992) (suggestingthat legislaturesshould blend
familylaw and tort law so that tort defines the duties and familylaw defines the remediesof a
wrongfullife claim, therebyallowingcourtsto "providethese childrenwith adequate and just
protection").
112. Id. at 406.
The shortcomingof the end-of-life approach is that the actual

choice is vastly different.In end-of-lifecases, courts are tryingto pro-
tect a patient's right to choose what kinds of medical treatment he
will receive, by using a subjectiveand objective test througha proxy.
In wrongful life cases, it is much harder to identify how the infant
would actually exercise its autonomy. Likewise, the shortcomingof
the family law approach is that it requires legislative action rather
than judicial action. It is unnecessaryto go to a care-based model,
when an individualrightsmodel, properlyinformedby economic con-
siderationsand policies, achievesthe same result.
C. MakingWrongfulLife ClaimsParasiticon WrongfulBirth Claims

ProfessorAlexander Capronsuggeststhat the wrongfullife claim
would be viable if it were consideredparasiticon the parents'claim."3
However, althoughthat is true, that suggestionmakes the wrong-
ful life claim superfluous.The whole point of a wrongful life claim
would be to allow recovery when the parents are unavailableto sue.
Double recoveryis not allowed. So, for example,if the statute of limi-
tations had run out on the parents' wrongful birth claim, the child
would not be able to assert a wrongfullife claim that is parasiticon
the parents'rightsbecause the parentscould no longer exercise those
legal rights.
IV. AN ECONOMICAPPROACH:
THE ENTITLEMENTFRAMEWORK
Tort is a policy-drivenfield of law. Economic analysis informs
tort policy by allocatingliability where it should lie. This Part eluci-
dates why the burden of paying medical expenses (i.e., special dam-
ages) but not pain and suffering(i.e., general damages)should fall on
the shouldersof negligentdoctors.
A. The Calabresiand MelamedFramework:AllocatingEntitlements

Entitlementsare protectedby three differentkinds of legal rules:
propertyrules,liabilityrules, and inalienabilityrules.'14The state must
113. AlexanderMorganCapron,TortLiabilityin GeneticCounseling,79 COLUM. L. REV.

618, 652 (1979).
114. Guido Calabresi& A. Douglas Melamed,PropertyRules, LiabilityRules, and Inal-
ienability:One Viewof the Cathedral,85 HARV.L. REV.1089,1089(1972).
first decide whom to entitle."'For example, the state could theoreti-

cally choose to entitle rapistsover those who prefer bodily integrity."6
Once this initial decision is made, the state must enforce its entitle-
ment.117
The second decision a state must make is how to entitle that per-
son.118The state has three choices. The state can choose a property
rule, which requires"someone who wishes to remove the entitlement
from its holder [to] buy it from him in a voluntary transaction in
which the value of the entitlement is agreed upon by the seller."119
The state can choose a liability rule, which allows "someone [to] de-
stroy the initial entitlement if he is willing to pay an objectively de-
terminedvalue for it."120 Finally,havingchosen whether to protect the
entitlement with a liability rule or a property rule, the state must
choose whether the entitlementis transferableor inalienable.121
1. Choosing Whom to Entitle. Three policy considerationsde-

termine to whom entitlementsshould be given: "economicefficiency,
distributionalpreferences,and otherjustice considerations."122
115. Id. at 1090:

Whenevera state is presentedwith the conflictinginterestsof two or more people, or
two or more groupsof people, it mustdecide whichside to favor.Absent such a deci-
sion, access to goods, services,and life itself will be decided on the basis of "might
makes right"-whoever is stronger or shrewderwill win. Hence the fundamental
thing that law does is to decide whichof the conflictingpartieswill be entitledto pre-
vail.
116. Id. at 1091.
117. Id.:
The need for interventionapplies in a slightly more complicatedway to injuries.
Whena loss is left whereit falls in an auto accident,it is not becauseGod so ordained
it. Ratherit is becausethe state has grantedthe injureran entitlementto be free of li-
ability and will intervene to prevent the victim'sfriends,if they are stronger,from
takingcompensationfromthe injurer.
118. Id. at 1092.
119. Id.
120. Id. An "objectivelydeterminedvalue" means that the state will decide the objective
value of the entitlement.Id.
121. Id. ("An entitlementis inalienableto the extent that its transferis not permittedbe-
tween a willingbuyerand a willingseller.").
122. Id. at 1093.Guido Calabresiand DouglasMelamedcriticizeadministrativeefficiencyas
an insufficientreason to allocateentitlements.See id. at 1093 (concedingthat the "administra-
tive cost[] of enforcement"is a simple reason for allocatingentitlements,but contendingthat
"[b]yitself this reasonwill neverjustifyany resultexceptthat of lettingthe strongerwin").
A given entitlement is economicallyefficient if it is both Pareto

optimal and Kaldor-Hicksefficient.l23Pareto optimalityoccurs when
"any movement from an allocation would make at least one person
worse off."124Pareto superiorityoccurs when an allocation "leaves at
least one person better off and no one is made worse off."'125Pareto
optimality and superiorityare usually contrastedwith Kaldor-Hicks
efficiency (also called wealth maximization).An allocationis Kaldor-
Hicks efficient if "those individualsmade better off by a policy or re-
allocation [were]made sufficientlybetter off that they could compen-
sate those who are made worse off. The key here is that the compen-
sation is 'potential,'not actual."'16
By "Paretooptimal,"Melamed and Calabresimean both Pareto
optimal and Kaldor-Hicksefficient, because they would only choose
allocationsthat are Kaldor-Hicksefficient, and then require the eco-
nomic winnersto compensatethe economic losers. However, "whatis
a Pareto optimal, or economicallyefficient, solution varies with the
startingdistributionof wealth."'127
Thus, there are five economic conclusions regardingeconomic
efficiency:(1) entitlementsshould favor "knowledgeablechoices be-
tween social benefits and the social costs of obtainingthem, and be-
tween social costs and the social costs of avoiding them";128(2) the
cost of an activity should rest on the shoulders of the party best
placed to analyze the costs and benefits of the activityto society; (3)
in accidents,the party that can most cheaply avoid the injuryshould
bear the costs; (4) if that party cannot be identified, the costs should
be placed on the party with the lowest transaction costs; and (5)
courtsmust decide whether to rely on the marketor objectivejudicial
valuationsof the entitlement.'29
The second considerationis distributionalpreferences.Distribu-
tional preferencesare less concrete than economic efficiency consid-
erations,because they rely on a society's "wealthdistributionprefer-
123. Id. at 1094 (definingeconomic efficiencyas entitlementsthat allocate resourcesin a

way "thata furtherchangewould not so improvethe conditionof those who gained by it that
they couldcompensatethose who lost fromit and still be betteroff thanbefore").
124. JEFFREY L. HARRISON, LAW AND ECONOMICS:CASES, MATERIALS, AND
BEHAVIORALPERSPECTIVES
50 (2002).
125. Id.
126. Id. at 59.
127. Calabresi& Melamed,supranote 114,at 1096.
128. Id.
129. Id. at 1096-97.
ences," which take into considerationeconomic efficiency,caste pref-

erences, and socialjudgmentsof individualworth.130
The final considerationis a catch-all:"other justice reasons."131
This is anythingthat is not an efficiencyor distributionalconcern,and
tends to mean some conceptionof intrinsicfairness.132
2. Choosing How to Allocate Entitlements. Property rules

should be the default rule for protecting an entitlement.133However,
property rules plus voluntary transfer cannot be universallyapplied
because transactioncosts could prevent future transfer,'34and an illiq-
uid market could prevent accurateappraisalof the value of the enti-
tlement. Thus, in cases in which there are high transactioncosts, such
as accidents,135liabilityrules are preferable.'36
A second situation in which liability rules should be chosen in
lieu of property rules is when a liability rule would "facilitate[] a
combinationof efficiency and distributiveresults which would be dif-
ficult to achieve under a property rule."'137 Often, it is cheaper and
more efficient to promote distributional goals through collective
valuation.38
An inalienabilityrule should be selected when the transaction
would result in significantcosts to third parties (i.e., negative exter-
nalities), or "when external costs do not lend themselves to collective
130. Id. at 1098.The term "castepreferences"tends to mean socialmorality,or how society

viewsitself.
131. Id. at 1102.
132. Id. at 1105 (emphasizingthat "justicenotions adhere to efficiencyand broad distribu-
tional preferencesas well as to other more idiosyncraticones.... [that]thoughplausiblyorigi-
nallylinkedto efficiency,have now a life of theirown").
133. See id. at 1106 (suggestingthat propertyrules are more economicallyefficient,except
when transactioncosts wouldprohibitefficientmarkettransfersof the entitlement).
134. Id. ("Oftenthe cost of establishingthe value of an initial entitlementby negotiationis
so greatthateven thougha transferof the entitlementwouldbenefitall concerned,sucha trans-
fer will not occur.").
135. Id. at 1108-09.
136. Id. at 1110("[A] very commonreason,perhapsthe most commonone, for employinga
liabilityrule ratherthan a propertyrule to protectan entitlementis that marketvaluationof the
entitlementis deemedinefficient,that is, it is eitherunavailableor too expensivecomparedto a
collectivevaluation.").
137. Id. ("[U]se of a liabilityrule may allow us to accomplisha measure of redistribution
that could only be attainedat prohibitivesacrificeof efficiencyif we employeda corresponding
propertyrule.").
138. Id.
measurementwhich is acceptablyobjectiveand nonarbitrary."'139 Two

other reasons for selecting inalienabilityrules are "self paternalism
and true paternalism."140
B. The CoaseFramework
This Section illustrateswhy the decision of whom to entitle with
a propertyrule only matterseconomicallywhen transactioncosts are
nontrivial.
1. Pigouvian Liability:InternalizeExternalities.When activities

have positive or negative externalities,agents fail to perceive the ul-
timate good or evil of their actions. Thus, agents underproduceor
overproducethose activitiesthat create positive or negative external-
ities. Socially optimal levels of such productionwould occur if gov-
ernment changed agents' incentives by taxing activities that create
negative externalities, and subsidizingactivities that create positive
externalities.In this way, agents would capture the benefit of their
positive externalitiesand would bear the cost of their negative exter-
nalities.41'
2. Coase and TransactionCosts:InternalizeExternalitiesUnless

It Costs Too Much. Pigouvian taxes and subsidies are superfluous
when the agents who created or suffered the consequences of the
harmscan dicker costlessly over the costs and benefits of their activ-
ity.142To illustrate,most Pigouvian economists favored holding pol-
luters liable to those injured by their smoke, or taxing those pollut-
139. Id. at 1111.

140. Id. at 1113.Self paternalismis whenan individualor groupsets fortha prospectiverule
that will protectthem in momentsof weakness.Id. (citingas examples(1) Ulysses tyinghimself
to the mast when his ship sailedpast the Sirens,and (2) the FoundingFatherscreatingthe Bill
of Rights). Currentexamplesinclude the voidabilityof contractsmade while drunkor under
duress.Id. True paternalismmeans that people cannot sell somethingbecauseit is objectively
not in theirinterestto sell it. Id. This is whyAmericanlaw forbidssellingorgans.
141. See generallyARTHURCECILPIGOU,THEECONOMICS OFWELFARE (Transaction
Publishers2002) (1952) (developinga theoreticalframeworkto analyze the efficiencyof re-
sourceallocation).
142. Economistsrecognizethat Pigouviantaxes and subsidiesstill work, but they are very
difficultto implementas a practicalmatterbecause they are hardto assess at the correctlevel.
For example,when governmenttaxes, firmsproduceless becausetheirmarginalcosts increase.
If governmenttaxes at the old quantityof production,the firmwill be overtaxed.If government
could tax at the new quantityof production,the Pigouviantax would work,but it is nearlyim-
possiblefor governmentto predictthe firm'snew quantityof production.
ers.143However, when there are no transactioncosts, the ultimate lev-

els of pollution do not change whether polluters were made liable or
the victims of pollution bore their own costs, because the polluters
and victims would dicker until they reached the socially optimal bal-
ance between productionof goods and pollution.'"Thus, when trans-
action costs are trivial,it makes no economic difference to whom the
entitlementis allocated.145
Nevertheless, when nontrivial transactionscosts exist (such as
discoveringwhat to purchase,from whom, on what terms,negotiating
and draftinga contract,and enforcingthe contract),then it mattersto
whom the entitlementis given. In such situations,a free market rear-
rangement of rights will not always occur, even when it would in-
crease the value of production.46
C. Summarizingthe EntitlementFramework
The true first order decision is to determine whether there are
transactioncosts; otherwise,decidingwhom to entitle is economically
inconsequential.147 If the state determinesthat meaningfultransaction
costs exist, then it should decide how to entitle. The strong default
143. R. H. Coase, The Problem of Social Cost, 3 J. L. & ECON. 1, 1-2, 26 (1960); see also id.
at 27 ("Whathas to be decidedis whetherthe gain frompreventingthe harmis greaterthanthe
loss which would be sufferedelsewhere as a result of stoppingthe action which producesthe
harm.").
144. Id. at 6 ("[T]heallocationof resourceswill be the same [whenthe damagingbusinessis
not liable for its injuries]as it was when the damagingbusinesswas liable for damagecaused.").
145. Id. at 8:
It is necessaryto know whether the damagingbusinessis liable or not for damage
caused since withoutthe establishmentof this initial delimitationof rightsthere can
be no market transactionsto transferand recombinethem. But the ultimate result
(whichmaximises[sic]the value of production)is independentof the legal positionif
the pricingsystemis assumedto workwithoutcost.
ProfessorCoase thoughtit was imperativethat "therightsof the variouspartiesshouldbe well-
defined."Id. at 19.
146. Id. at 16:
In these conditions[of transactioncosts] the initial delimitationof legal rights does
have an effect on the efficiencywith which the economic system operates. One ar-
rangementof rightsmay bring about a greatervalue of productionthan any other.
But unless this is the arrangementof rightsestablishedby the legal system,the costs
of reachingthe same resultby alteringand combiningrightsthroughthe marketmay
be so great that this optimalarrangementof rights,and the greatervalue of produc-
tion whichit wouldbring,may neverbe achieved.
147. Calabresiand Melamedcontend that the state must firstdecide whom to entitle. How-
ever, if there are no transactioncosts and the entitlementis protectedby a propertyrule, then
the partieswill be able to dickerto achieve the socially optimalresult-no matterwhich party
had the originalentitlement.
choice should be for propertyrules, because privateorderingof enti-

tlements is generally more efficient and takes into considerationthe
actual parties' valuations better than a court's objective determina-
tion. However, property rules are inappropriatewhen significant
transactioncosts must be overcome for the market to accuratelyap-
praise the value of the entitlement.A prime example of when a prop-
erty rule is inappropriateis accidents.Likewise,when a propertyrule
would lead to an inequitable distributionaloutcome, then liability
rules are better, because they permit judicial intervention to objec-
tively assess the value of entitlementsfor weaker parties.Inalienabil-
ity rules should be selected when transactionswould resultin negative
externalities,or when the state wishes to paternalisticallyprotect its
citizens.
Once the state has decided how to entitle, it should decide whom
to entitle based on economic efficiency, distributionalpreferences,
and other justice considerations.The entitlement is efficiently allo-
cated if there is a net social benefit, and economic winners are re-
quired to compensate economic losers. This implies that the cost
should be borne by the party in the best position to calculatethe so-
cial costs and benefits of using the entitlement,or the partythat can
most cheaply avoid the costs, or the party that can act in the market
with the lowest transactioncosts to correcterrorsin entitlement.The
entitlement is distributedappropriatelyif it does not conflictwith so-
ciety's wealth distributionpreferences.The entitlementconflictswith
society's wealth distributionpreferencesif it is inefficient,upsets caste
preferences, or interferes with social judgments of individualworth.
An entitlement is consistent with other justice factors if it simply
resonateswith an inherentsense of fairness.
V. THE FINAL RITE OF PASSAGE:

BRINGING WRONGFUL LIFE INTO ADULTHOOD
In economic terms, current wrongful life precedent actually
means that doctors have an entitlement as to children (but not as to
parents), to negligentlyor intentionallyfail to diagnose a child'scon-
dition, and to negligentlyor intentionallyfail to inform the mother of
the child's condition.•4 However, I argue that this entitlement is
148. Althoughcourtshave nominallysaidthat doctorsowe dutiesnot to be negligentin this

fashion,courtshave substantivelyreachedthe oppositeconclusion-to speak of an unenforce-
able duty is to speak of an oxymoron.However,courtsthat have denied wrongfullife claims
have not justifiedtheirallocationof this entitlementin economicterms.See supraPartII.
properly allocated to the child and should be protected by a liability

rule. Section A analyzes the wrongful life problem via the economic
model sketched in Part IV, and demonstrateswhy this loss should be
allocated to the doctor. Section B explains how this loss can be allo-
cated to the doctor withinthe existingtort frameworkof duty, breach,
causation,and injury,by setting forth a financialtheory of injury.
A. Entitlements
1. TransactionCosts.The first inquiryis, assumingthat a prop-

erty rule protected an entitlement to negligently or intentionallyfail
to diagnose or informa mother of her child'scondition,whetherthere
would be significanttransactioncosts.149
Here, there would clearly be extraordinarytransactioncosts be-
tween the mother and the doctor. Asking a mother to set a value on
the price of her child's health is almost impossible-a mother who has
any affection for her offspringwould not be able to set the price at
which she would accept a retarded or deformed baby in lieu of a
healthy baby. Because of a mother's inability to set a price on her
baby's health, if a mother was requiredto purchasefrom a doctor his
entitlement to negligently or intentionallyfail to diagnose her child,
negotiations would be extremely costly because one of the parties
would not have a bottom line. Moreover, to be crude, no legal liquid
market provides informationto market participantsabout the going
rate for a healthynewbornbaby instead of a baby with birthdefects.'5o
Finally, draftingsuch a contractwould be expensive because it is un-
likely that either party would be satisfied with a form contract,given
how personaland emotionallyintense such decisionswould be.
149. Obviously,to the extent a propertyrule would obtain, the parentswould necessarily
have to act as bargainingproxiesfor theirunbornchild.Propertyrule protectionwouldbe even
more problematicbecausethe unbornchildcannotbargainon its own behalf.
150. But cf Elisabeth M. Landes & Richard A. Posner, The Economics of the Baby Short-
age, 7 J. LEGALSTUD. 323, 324 (1978) (arguing for a market solution to the adoption problem
of the baby shortage); Richard A. Posner, The Regulation of the Market in Adoptions, 67 B.U.
L. REV.59, 72 (1987) ("So we [already]have legal baby selling today;the question of public
policy is not whetherbaby sellingshouldbe forbiddenor allowedbut how extensivelyit should
be regulated.I simplythink it shouldbe regulatedless stringentlythan is done today.").For a
sarcastic proposal for such a legal liquid market, see JONATHANSWIFT,A MODESTPROPOSAL
AND OTHERSATIRES259-66 (Prometheus Books 1995) (1729) (noting that young healthy chil-
drenare "a most delicious,nourishing,and wholesomefood, whetherstewed,roasted,baked,or
boiled," and therefore suggesting,humblyand modestly,that poor Irish people should breed
theirchildrenfor consumptionon the market,to preventpoor Irishchildrenfromburdeningthe
publicfisc).
2. Property Rule or Liability Rule. Because there assuredly

would be significant transactioncosts if the entitlement were pro-
tected by a property rule, it is necessary to determine what kind of
rule shouldprotectthe entitlement.
Here, I argue that a liabilityrule should be employed to protect
the entitlement. The mother would find it nearly impossible to de-
termine her bottom line in negotiations.Thus, because of the transac-
tion costs that this indecisivenesswould cause, privateorderingin the
market would be unable to accuratelyassess the value of the entitle-
ment. This should not be surprising,because, after all, when a court
entertainsa wrongfullife lawsuit,the court is generallyconsideringto
whom to give an entitlementto commit an accident,and entitlements
for accidentsare best addressedvia liabilityrules.
Moreover, a propertyrule would lead to an inequitabledistribu-
tional outcome, because either doctors would undervaluethe worth
of their patients' children, or parents would overvalue the worth of
their children. Given that doctors generally have much greater mar-
ket power than their patients, mimickingthe market would consis-
tently undercompensate patients and overcompensate doctors for
bearingrisks.Thus, it is better for courts to intervene and collectively
assess the value of the entitlementfor both parties.
3. Whom to Entitle:Economic Efficiency.Now that a liability

rule has been chosen to protect the entitlement,it is necessaryto de-
terminewhom to entitle.
Here, the doctor should not be allocated an entitlementto negli-
gently or intentionallyfail to diagnose childrenor informtheir moth-
ers about the potentialretardationor deformation,becauseto do so is
inefficient,does not satisfy society's distributionalconcerns,and vio-
lates otherjustice considerations.
Placing children with birth defects into the world creates a net
social cost, because such children require scarce medical resources
and are not capable of contributingother resourcesto society. If the
doctor is not held liable for the child's wrongfullife, then this burden
would probablybe borne by the child'sparents,by the child (as when
the child has a trust fund), or, finally,by the state. This is inappropri-
ate. Because the doctor has created this social inefficiency,the doctor
should be required, i la Pigou, to internalizethis negative externality
by compensatingthe child. Note that this entitlementscheme merely
gives doctors the same economic incentives to avoid negligent or in-
tentionalinjuriesas the wrongfulbirthentitlementscheme.
Doctors should bear the costs because they are in a better posi-
tion to avoid the costs. Doctors are in the best position to calculate
this potential social cost because only doctors have access to the nec-
essary information(and technical ability to understandthis informa-
tion) to determinewhether a child will be retardedor deformed.Fur-
thermore, doctors are able to obtain liability insurance more easily
than parents or fetuses: obstetricians are involved in many more
births than are either the individualparentswho give birth or the in-
dividualfetuses who are born. Doctors already obtain liability insur-
ance for the rest of their medical practice,so this would only margin-
ally increasethe cost of the servicesthey provide,whereas it would be
very time consuming and expensive in terms of transactioncosts for
parentsto purchaseinsurancethat would provide for their child's ex-
penses and their heartbreakif their child were born deformed or re-
tarded. Because doctors incur fewer transactioncosts in obtaining li-
ability insurance, they can more cheaply diffuse the social costs of
childrenwith birthdefects.
Moreover,requiringdoctors to compensate childrenand parents
provides an economic deterrentincentive for doctors to be more cir-
cumspectabout avoidingnegligent (or intentional)behavior.Because
doctors are the only ones who could avoid this injury,doctors should
be responsiveto this economic incentive. Requiringnegligent doctors
to compensate childrenfor their medical expenses (and deal with the
hassle of defending lawsuits) would provide the same amount of de-
terrenceas in wrongfulbirthlawsuits.
Although some might argue that there are enough other punish-
ments to deter negligent doctors, such as losing medical board certifi-
cation, two objections can be raised immediately.The first objection
is that there are other prenatal negligence lawsuits. If nontort reme-
dies were enough to deter doctors from being negligent, other prena-
tal negligence lawsuitswould also be superfluous-but no one credi-
bly arguesthat all prenatalnegligencelawsuitsare superfluous,so this
argument is weak. The second objection is that medical licensing
boards tend to revoke licenses only for intentional or grossly negli-
gent behavior,not for merely negligent behavior."'But doctors carry

insurancepreciselyto deal with negligentmishaps.
4. Whom to Entitle:DistributionalPreferences.Doctors should

not be entitled to negligentlyor intentionallyfail to diagnose children
or inform their mothers about potential retardationor deformation
because, otherwise, inequitable distributionalresults would obtain.
Patients are at a relative disadvantageto doctors in negotiating the
transferof this entitlement because they do not understandthe rele-
vant medical information as well as doctors, and because they are
hopelessly lost in evaluating the financial value of their own child.
Because there is no economic deterrenteffect if doctors are granted
this entitlement,such an entitlementscheme is sociallyinefficientbe-
cause it would result in more childrenwith birthdefects who drainso-
ciety's resources. Furthermore,whether or not such an entitlement
would upset caste preferences, it would interfere with the parents'
judgmentof the individualworth of theirchild.
5. Whom to Entitle:OtherJustice Considerations.Holding doc-
tors liable in wrongful life lawsuits is consistent with "otherjustice
considerations"because doctors are already held liable in wrongful
birth lawsuits,and the two kinds of legal claims are economicallyin-
distinguishable.It simply seems unfair for children not to be able to
recover their medical expenses when a doctor has clearly done some-
thing wrong.'"As the Curlendercourt recognized,"[t]herealityof the
'wrongfullife' concept is that such a plaintiff both exists and suffers,
due to the negligence of others. It is neithernecessarynor just to re-
treatinto meditationon the mysteriesof life."'53
6. Administrability.Administrabilityshould not bar liabilitybe-

cause courts and juries can easily determine whether a child is de-
151. See, e.g., N.C. GEN. STAT.? 90-14(a)(6) (2002) (revoking medical licenses for
"[u]nprofessionalconduct, including... departurefrom... the standardsof acceptable and
prevailingmedicalpractice.... [onlyif] the Boardcan establishthat the treatmenthas a safety
risk greaterthan the prevailingtreatmentor that the treatmentis generallynot effective").In
practice,doctorsdo not forfeit their licensesfor mere negligence,as illustratedby the absence
of any suchcase underNorthCarolinalaw.
152. See Kelly, supranote 22, at 589 (concludingthat "theoriesbased on deterrence,cost-
spreading,and fairnessall seem to supportpermittingthe child victim of a genetic counseling
tort to recover"(emphasisadded)).
153. Curlenderv. Bio-ScienceLabs.,165 Cal. Rptr.477, 488 (Cal. Ct. App. 1980) (emphasis
added).
formed or whether a doctor was negligent;courts andjuries do this all

the time. Moreover,courts and juries alreadyperformthese functions
in wrongful birth lawsuits. The only difficult question is the highly
esoteric one of whether life can be considereda legal injury.Whether
life is an injuryor whetherlife is not, courtswould not have any addi-
tional difficultyseparatingmeritoriouslawsuits from fraudulentlaw-
suits.
7. Summary.Economic analysisillustratesthat the child should

be given the entitlement in wrongful life lawsuits to have the doctor
avoid the negligent or intentional failure to diagnose or inform his
mother about his potential retardationor deformation,just as parents
are given the entitlementin wrongfulbirthlawsuits,and that this enti-
tlement should be protected by a liability rule. The legal paradigm
should accommodatethis policy determinationvia the models in Sec-
tion B.
B. ConnectingEntitlementsto the TortParadigm:Chartinga Legal

Map to Circumnavigatethe InjuryElement
If courts are to be taken at their word, the single tort element
that prevents children from recovering for wrongful life is injury.154
Economic considerationsdictate that courts should hold doctors li-
able for their negligence when that result is compatiblewith the tort
paradigm.The tort paradigmcan achieve this result by construingthe
injuryin wrongfullife as an economic harm to the financialcondition
of the child. This would allow children to recover medical expenses
(because those expenses constitute the injury) but not pain and suf-
fering (because those costs collide with the nonexistenceparadox).
1. Model One: Recovery for Defects Depends on Income

Streams.The injuryto the child should be construedas a financialin-
jury. The doctor has condemned a severely deformed or retarded
child to a life in which the child will never be economically self-
sufficient-the child will be unable to support himself or pay for his
medical expenses by exchanginghis labor for wages. Thus, the doctor
has quite literally injured the child's financial wellbeing by causing
him to be born.'55
154. See supra Part II.

155. Homo economicuscould rationallychoose nonexistenceover negativeincome. For an
example of how an individualin Americansociety may rationallychoose death, see generally
When the injury is construed as a financial harm, it is easy to

identify and calculate.For simplicity'ssake, suppose that a child, be-
fore existence, has an income streamof zero dollars (because he can-
not exchangehis labor for income and has no expenses). Now, imag-
ine that a jury determines that, after coming into deformed or
retardedexistence, a particularchild has an income stream of nega-
tive $750,000(because he has no income but has considerablemedical
expenses). Thus, if this child were viewed throughthe narrowspecta-
cles of economics, the child's injury becomes apparent. Here, the
child would have suffered $750,000worth of injuries-the expenses
that he will have to pay. The nonexistenceparadoxdissolves because
the court does not have to weigh the benefits of existence againstthe
unknowable costs of nonexistence. Here, there are cold, hard num-
bers with which to accuratelycalculatethe extent of the child'sinjury.
To apply this model and determinewhetherthe child is economi-
cally self-sufficient,juries should assess what the child'slikely positive
income stream would be, and subtractthe child's likely negative in-
come stream. If the negative income stream was greater than the
child's positive income stream,the child should recover all of his spe-
cial damages.However, if the positive income stream outstrippedthe
negative income stream,then the child shouldrecovernothing.
To make this model more concrete,suppose Mrs. Hudson, a sin-
gle mother, is pregnant with triplets:Sherlock, Irene, and Moriarty.
Mrs. Hudson asks Dr. Watson if there is any unusualpossibilitythat
any of her childrenwould be born with any birth defects, because if
so, she would abort. Dr. Watson negligently tells Mrs. Hudson that
there is no unusualpossibilitythat her childrenwill be born with any
birth defects. In fact, Sherlock is born with a cleft lip, Irene is born
with a lung ailment that requires monitoringfor the rest of her life,
and Moriartyis born with polycystickidney disease. Tragically,Mrs.
Hudson dies duringlabor.Sherlock,Irene, and Moriartysue Dr. Wat-
son for wrongfullife. Which of these plaintiffswould be able to make
out a wrongfullife claim underthis model?
ARTHURMILLER,DEATH OFA SALESMAN(Penguin Books 1999) (1949). Indeed, in this play,

the protagonist rationally chose death over negative income, which is a slightly different choice.
See also Christopher Bigsby, Afterword to MILLER,supra, at 111, 127 (responding to a specta-
tor's remark that Death of a Salesman was a "time bomb under American capitalism" by
agreeing and hoping that it was, "or at least under the bullshit of capitalism, this pseudo life that
thought to touch the clouds by standing on top of a refrigerator, waving a paid-up mortgage at
the moon, victorious at last").
Clearly,Sherlockwould not be able to recover for wrongfullife.

Sherlock'snegative income stream would be negligible because cleft
lips only requireminor cosmetic surgeryto correct. On the other side
of the equation, Sherlock's positive income stream would hardly be
affected. Sherlock would still be economically self-sufficientbecause
he could exchange his labor for wages. Sherlock'sclaim fails because
his positive income streamoutstripshis negative income stream.
Just as clearly, Moriartywould be able to recover for wrongful
life. Moriarty'snegative income stream would be substantialbecause
he would require expensive and continualmedical treatmentsduring
his short life. Because polycystic kidney disease is terminal at a very
young age, Moriartycould never exchange his labor for wages. So his
positive income streamwould be nil. Because Moriarty'snegative in-
come stream outstrips his positive income stream, Moriarty'sclaim
succeeds, and he would recover the entire cost of his medical treat-
ments.
However, it is highly uncertainwhether Irene would be able to
recover for wrongfullife. Irene's negative income stream may or may
not be substantialbecause it is unclear how extensive and expensive
this medical monitoringwould be. On the other hand, Irene's positive
income stream would be unaffected."6Thus, Irene's negative income
stream may or may not outstrip her positive income stream. If the
medical monitoring was more expensive than her positive income
stream, her claim would succeed. If the medical monitoringwas less
expensive than her positive income stream,her claimwould fail.
2. Model Two:Recoveryfor All Defects. The Irene problem re-
inforces that courts and juries incur transaction costs when deter-
miningwhich party should prevail.It would be costly for juries to de-
termine as a factual question how severe an injury must be for the
child to recover special damages for that injury.It would be no less
costly for courtsto determineas a matterof law which injuriescannot
be compensated for with special damages. For example, there are
many forms of deformity or retardationthe development of which
cannot be accuratelypredicted. Moreover, there are many cases in
which childrenare afflictedwith more severe and less severe forms of
deformityand retardation.To requirejuries or courts to siphon these
separate claims into different channels of compensationcould be ad-
156. The jury'sdeterminationof Irene'spositiveincome streamwould probablydepend on

factorslike socioeconomicstatus,parents'education,jobs, etc.
ministrativelydifficult and expensive. Thus, to avoid incurringthese

administrativecosts, it might make more sense to permit all children
to recover special damages for any deformityor retardationthat af-
flicts them.
3. Punitive Damages. Under either model, the child could still

recover punitive damages,so long as his claim succeeds, because pu-
nitive damagesare designed to deter malfeasance,not to compensate
Thus, the nonexistence paradox is unrelated to punitive
injuries."'7
damages. Moreover, punitive damages in wrongful birth cannot be
differentiatedfrom punitivedamagesin wrongfullife.
4. Legal Authority. Some legal authority has suggested that

economic harmsalone can be compensablewithout an actualphysical
or emotionalinjury.For example,a federal circuitcourtin a mass tort
suit arising out of an airplane crash concluded that a hypothetical
plaintiff who was not injured, but incurred costs in determining
whether or not he was injured, could recover those medical ex-
penses.'58Courts could easily adapt this reasoningto permit children
to recover.
5. The Specterof Overcompensation.If overcompensationis a

concern,compensationwould be limited by a numberof factors.First,
as an initial threshold matter, doctors would still never be liable un-
less they breachedthe medical standardof care. Second,judges at the
157. See Ciraolov. Cityof New York,216 F.3d236,243 (2d Cir.2000) (Calabresi,J., concur-
ring) ("Punitivedamagescan ensure that a wrongdoerbears all the costs of its actions,and is
thus appropriatelydeterredfromcausingharm,in those categoriesof cases in whichcompensa-
tory damagesalone resultin systematicunderassessmentof costs, and hence in systematicun-
derdeterrence.").
158. Friendsfor All Childrenv. LockheedAircraftCorp.,746 F.2d816, 825 (D.C. Cir.1984):
Jones is knocked down by a motorbikewhich Smith is ridingthrougha red light.
Jones landson his head with some force. Understandablyshaken,Jones entersa hos-
pital where doctors recommendthat he undergo a battery of tests to determine
whether he has suffered any internalhead injuries.The tests prove negative, but
Jones sues Smithsolely for what turnsout to be the substantialcost of the diagnostic
examinations.
From our example,it is clear that even in the absenceof physicalinjuryJones ought
to be able to recover the cost for the various diagnosticexaminationsproximately
causedby Smith'snegligentaction.
This passagehas been quoted frequentlyby other courts.Day v. NLO, 851 F. Supp.869, 880
(S.D. Ohio 1994) (quotingwith approvalLockheed,746 F.2dat 825);Potterv. FirestoneTire &
RubberCo., 863 P.2d 795, 824 n.26 (Cal. 1993) (same);Hansenv. MountainFuel SupplyCo.,
858 P.2d970, 977-78 (Utah 1993)(same).
summaryjudgment stage and jurors at the trial stage would be much

less likely to believe a mother who claimsshe would have abortedher
child because the child had a missingfinger or a cleft lip, for example.
Thus, plaintiffswould generally lose when suing for outrageousinju-
ries. Third,the compensationrequiredfor more minor injurieswould
not be as expensive to the defendant. Thus, if a child recovers for
deafness, the child would only recover for the costs of the medical
treatmentsand special schooling he would require. Finally, a wrong-
ful life claim has the same economic effect as a wrongfulbirth claim.
Indeed, the only differenceis that the statute of limitationsis tolled in
wrongful life claims, because the plaintiff is a minor. This proposed
solution would only supportrecovery of special damages,not general
damages,as recognitionof the similarityof the two claims.
CONCLUSION
It is unfair for children with birth defects to suffer the conse-

quences of their inabilityto supportthemselves financially.The enti-
tlement framework illustrates why it makes little, if any, economic
sense for doctors to be entitled, as to childrenbut not as to parents,to
negligently or intentionallyfail to diagnose or inform parents about
likely birthdefects.
Currently,many courts are unable to see throughthe miasma of
the nonexistence paradox and the fog of sanctity of life concerns to
hold doctors liable to children for their special medical expenses.
However, by narrowlyconceiving the injuryin an economic manner,
courts can focus their inquiryto burn throughthe haze of the nonex-
istence paradox, causing its concomitant sanctity of life concern to
dissolve and dissipate, and revealing the compassion and logic of re-
quiringnegligent doctors to lighten the burden of childrenwith birth
defects. Moreover, by identifying an analytic principle-financial
harm--compensation is limited to the actual injury the doctor has
created. As a result, doctors would not be overdeterredby this addi-
tional liability.
Because tort and economic policy support holding doctors liable
for their negligence, tort should adapt to hold doctors liable. This
Note attemptsto blaze a new legal trail.If courts accept my invitation
to perform this new form of analysis in wrongful life lawsuits, they
would ultimatelyarriveat more economicallyjustifiable and compas-
sionate results. As odd as it may sound, in certain circumstances,life
can and should be a compensableinjury.

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Duke University School of Law

When Life Is an Injury: An Economic Approach to Wrongful Life Lawsuits

WHEN LIFE IS AN INJURY: AN ECONOMIC

Can life be an injury?Jurists,theologians,and philosophershave

Copyright@2003by ThomasA. Bums.

the child has sufferedany legally cognizableinjury:had the doctor not

Wrongfullife and wrongfulbirth are the latest developmentsin

to recognize parents' wrongful birth claims.5Until 1982, no state su-

5. See Becker,386 N.E.2d at 813 (recognizingparents'wrongfulbirth claim for the first

cally, was alreadycondemnedto a deformedor retardedexistence be-

10. 410 U.S. 113 (1973).

16. KEETONETAL., supra note 8, ? 30, at 164-65.

deformed existence to nonexistence.22 Even the few courts that have

II. THE GROWTH OF WRONGFUL LIFE AND

Wrongfullife and wrongful birth have had turbulentformative

22. Becker,386 N.E.2d at 812. Of course,judges and commentatorscriticizethese ration-

month earlier,37the doctors negligently informed her that "the Ger-

C. TheBirthof WrongfulBirth:Becker v. Schwartz

48. 400 N.Y.S.2d110 (N.Y. App. Div. 1977).

Damages were impossible to measure because the wrongful life

cover punitive damages in wrongful life lawsuits.76However, as the

1. California.The SupremeCourt of Californiafirst considered

76. Id. at 490.

Althoughit is easyto understand andto endorsethesedecisions'de-

2. Washington.The Supreme Court of Washington followed

84. Id. at 961-62.

wished to deter negligent doctors."9Finally,the court remainedcogni-

ness, failing to recognize that their conclusions also comport with

Scholarshave made several interestingand intriguingattemptsto

97. Belsky,supranote 17, at 248.

existence paradox,is that actions can also be intelligiblybroughtfor

101. Id. at 23.

B. End-of-Lifeand FamilyLaw Analogies

106. E.g., Belsky,supranote 17, at 223-34; Kelly,supranote 22, at 537-49. Ironically,other

The shortcomingof the end-of-life approach is that the actual

C. MakingWrongfulLife ClaimsParasiticon WrongfulBirth Claims

A. The Calabresiand MelamedFramework:AllocatingEntitlements

113. AlexanderMorganCapron,TortLiabilityin GeneticCounseling,79 COLUM. L. REV.

first decide whom to entitle."'For example, the state could theoreti-

1. Choosing Whom to Entitle. Three policy considerationsde-

115. Id. at 1090:

A given entitlement is economicallyefficient if it is both Pareto

123. Id. at 1094 (definingeconomic efficiencyas entitlementsthat allocate resourcesin a

ences," which take into considerationeconomic efficiency,caste pref-

2. Choosing How to Allocate Entitlements. Property rules

130. Id. at 1098.The term "castepreferences"tends to mean socialmorality,or how society

measurementwhich is acceptablyobjectiveand nonarbitrary."'139 Two

1. Pigouvian Liability:InternalizeExternalities.When activities

2. Coase and TransactionCosts:InternalizeExternalitiesUnless

139. Id. at 1111.

ers.143However, when there are no transactioncosts, the ultimate lev-

choice should be for propertyrules, because privateorderingof enti-

V. THE FINAL RITE OF PASSAGE:

148. Althoughcourtshave nominallysaidthat doctorsowe dutiesnot to be negligentin this

properly allocated to the child and should be protected by a liability

1. TransactionCosts.The first inquiryis, assumingthat a prop-

2. Property Rule or Liability Rule. Because there assuredly

3. Whom to Entitle:Economic Efficiency.Now that a liability