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 COMMENT

AN ACTION FOR "WRONGFUL LIFE"

MORRIS PLOSCOWE

Zepeda v. Zepeda' is an action brought by a child against

its father. The child complains that the father induced the mother
to have sexual intercourse upon his promise of marriage. Un-
known to the mother, the father was already married and the
promise could not be kept. As a result of this illicit intercourse,
the plaintiff was born an adulterine bastard. The father's acts
were wilful and fraudulent. The plaintiff child seeks damages
from his father for the deprivation of his right to be a legitimate
child, to have a normal home, for his stigmatization as a bastard
and because he must now suffer all the disabilities of a bastard
child. The lower court dismissed the complaint for a failure to
state a cause of action. The plaintiff appealed.
Professor Max Rheinstein was appointed by the appellate
court as amicus curiae on the question of whether a right of
action existed. The court, in a well-considered opinion, concluded
that while a tort was unquestionably committed against the
plaintiff, it would affirm the dismissal of the complaint.
In reaching the conclusion that a tort was committed against
the plaintiff, the court was not particularly disturbed by the fact
that the defendant's wrongful acts were committed at or prior
to the conception of the child. It noted the use of the viability test
in actions brought on behalf of a child for prenatal injuries and
the tendency to abandon this test because of the uncertainties
as to when a child has become viable. The court was prepared
to accept the doctrine that a child comes into being at the moment
of conception and can be legally injured at that time.
However, the court recoiled from the consequences of giving
the child a remedy in a case of this kind. In the first place, as
Professor Rheinstein noted, the claim was a novel one; no claim
of this kind seems to have been made before in any common-law or
civil-law jurisdiction. Secondly, the recognition of a right of

Morris Ploscowe is Adjunct Associate Professor of Law at New York Uni-

versity School of Law, was formerly City Magistrate, and is a Member of the
New York bar.
1. 41 Ill. App. 2d 240, 190 N.E.2d 849 (1963).

Imaged with the Permission of N.Y.U. Law Review

 "WRONGFUL-LIFE" ACTION

action in this instance would "open the flood gates of litigation"

to all kinds of disadvantaged and handicapped children. This
would be the acceptance of a "wrongful life" action. Yet such a
"wrongful life" action is not recognized at the present time in
the case of legitimate children. Illegitimate children cannot be
given greater rights that those of legitimate children. Thirdly,
while the court recognized the disabilities and handicaps of an
illegitimate child under our present legal system, stemming from
the original common-law notion that a bastard child was nutlius
filius, it did note the amelioration of these legal disadvantages
through modern legislation. Finally the court, by quoting statistics
of rising illegitimacy, was appalled at the large number of suits
which would be brought if a precedent were set and a right in
damages recognized in the instant proceeding. The court, there-
fore, concluded: "If we are to have a legal action for such a
radical concept as wrongful life, it should come after thorough
study of the consequences. This would be so even if the new action
were to be restricted to illegitimates or even adulterine illegiti-
mates." The court recommended that such a study be made by
the Illinois Legislature; and policy, in a situation as far reach-
ing as the instant case, should be declared by the legislature, rather
than by the courts. Accordingly, the dismissal of the complaint
was affirmed notwithstanding the court's finding of a cause of
action.
The court unquestionably reached a correct decision. The
elimination of the legal handicaps suffered by the illegitimate
child cannot come through giving such a child a right of action
against its parents as a result of judicial legislation. They must
be removed by direct statutory enactment. The illegitimate child
should be placed on a plane of legal equality with legitimate
children. As the court notes, this has already been accomplished
to a certain extent in Illinois, as it has in many other states. But
progress in achieving such equality varies from state to state. The
old brutal common-law concept of the bastard as nuiius filius is
still entirely too much alive in the law of this country. The State
of Arizona has pointed the way for future legislation. Arizona
has accepted the basic concept that all children are the legitimate
children of their natural parents This concept should be uni-
versally adopted. The illegitimate child, once parentage has been
determined, has an inherent right to legal equality with any other
children of his parents. He should have the same claim to sup-
port, education, inheritance, etc., as any other child of the same
2. Id. at 248, 190 N.E.2d at 859.
3. Ariz. Rev. Stat. § 14-206 (1956).

Imaged with the Permission of N.Y.U. Law Review

 NEW YORK UNIVERSITY LAW REVIEW

parents. This approach of placing illegitimates on the same legal

plane as legitimate children appears to the writer as the soundest
way of resolving the issues raised by the instant case.
We recognize that even after a statute is passed placing all
children, legitimate or illegitimate, on the same legal plane, an
illegitimate child may still be handicapped socially. The bastardy
concept is deeply rooted in popular thinking and a child may still
suffer invidious social discriminations, no matter what the law
does. Nevertheless, we still do not believe that an illegitimate
child should be given a right of action against his parents de-
spite the mental suffering which may result from his being a
bastard. The law cannot provide a remedy for every wrong despite
the brave language of such constitutions as that of Illinois, which
reads: "Every person ought to find a certain remedy in the laws
for all injuries or wrongs which he may receive in his person,
property or reputation."4 There are some wrongs which must be
suffered and the law cannot provide a remedy for them. To attempt
to do so may do more social damage than if the law leaves them
alone.
Consider what would happen if we adopt the principle of
giving a child a right of action against his parents because of
the fact that the child was brought into the world in a dis-
advantaged state. Stich a principle would obviously prove to apply
to both legitimate and illegitimate children. It would give every
child of an alcoholic a right of action against his parents; every
child of a quarrelsome couple a right to sue his parents on the
theory that the parents should have known that their incompat-
ibility would adversely affect their child. This principle could be
relied on in a suit by a child born with a congenital defect or by
a child who sues his mother for taking drugs during pregnancy
which resulted in his being a cripple. We do not believe that the
law should provide a basis for such interfamilial warfare. It is
obvious that the application of a "wrongful life" doctrine would
corrode family life.
There is room in the law for neglect as well as for action.
We strongly recommend a policy of neglect in the area of suits
by children against their parents. One of the tasks of the law is
to foster decent family life. This cannot be accomplished if chil-
dren can sue their parents because they were disadvantaged at
birth.
4. ll. Const. art. 2, § 19.

Imaged with the Permission of N.Y.U. Law Review