Does PA Allow for a Wrongful Birth Claim? It Does Now.

In 1988, Pennsylvania passed 42 Pa.C.S. 8305 that clarified that Pennsylvania does not allow for a cause of action based on a claim that “but for an act or omission of the defendant, the person would not have been conceived or, once conceived, would or should have been aborted.”  This law has remained intact until the past 30 days.  In the case of Sernovitz v. Dershaw, shortly after the Sernovitzes’ son was born, he was diagnosed with Riley-Day syndrome, a serious health defect.  The Sernovitzes claimed that the failure of their ob-gyn to reveal that Mrs. Sernovitz was a carrier of the genetic mutation that causes Riley-Day resulted in their failure to conduct additional testing — testing which (because of the positive results) would have resulted in their abortion of their son.  On its face, this cause of action was barred by 8305, and so the trial court dismissed the action.

An appeal was lodged and the plaintiffs argued that the 8305 was unconstitutional because the bill contained more than one subject (the bill’s focus was post-trial criminal procedure) and thus violated the single-subject rule of the Pennsylvania constitution.  The Superior Court agreed and reinstated the plaintiffs’ complaint.

So, for the moment (and an appeal to the Supreme Court or legislative action is likely), you can file a wrongful birth claim in Pennsylvania.

For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com.