Pennsylvania Supreme Court Upholds Wrongful Birth Statute

By John C. Farrell, Esq. & Laura J. Persun, Esq.*

In 1988, the Pennsylvania General Assembly passed Act 47 into law, which contained multiple pieces of legislation, many of which did not relate to each other. For instance, Act 47 repealed the Post-Conviction Hearing Act and enacted the Post-Conviction Relief Act in its place. It also conferred the Supreme Court with exclusive jurisdiction to hear appeals in capital cases, mandated minimum sentences for offenses committed while impersonating a law enforcement officer, precluded dismissal of felony charges at a preliminary hearing solely because of a party’s failure to appear, limited defenses against claims for injuries sustained while in utero, and precluded acti6ons for wrongful birth and wrongful life. In pertinent part, Act 47 states:

(a) Wrongful birth.—There shall be no cause of action or award of damages on behalf of any person based on a claim that, but for an act or omission of the defendant, a person once conceived would not or should not have been born . . .

(b) Wrongful life.—There shall be no cause of action on behalf of any person based on a claim of that person 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.

See 42 Pa.C.S. § 8305(a)-(b). In the years following passage of Act 47, courts consistently upheld the constitutionality of Section 8305. See, Hatter v. Landsberg, 563 A.2d 146, 149 (Pa.Super. 1989) (allowing an action for wrongful conception, but precluding actions for wrongful birth and wrongful life); Butler v. Rolling Hill Hosp., 582 A.2d 1384, 1386 (Pa.Super. 1990) (precluding a plaintiff mother from recovering for the costs of rearing a healthy child on the basis that Act 47 precluded actions for wrongful life); Bianchini v. N.K.D.S. Assocs., Ltd., 616 A.2d 700, 705 (Pa.Super. 1992) (precluding a wrongful birth action against doctors for their failure to diagnose a fatal fetal deformity); Dansby v. Thomas Jefferson Univ. Hosp., 623 A.2d 816, 821 (Pa.Super. 1993) (precluding the plaintiff parents’ action for the wrongful birth of their child based on erroneous amniocentesis testing).

While Act 47 was continually challenged, no one ever attacked it on the basis that it was comprised of piecemeal litigation. However, another important law, a prior version of the Fair Share Act, was struck down in DeWeese v. Weaver, 880 A.2d 54, 61 (Pa.Cmwlth. 2005) because it contained multiple distinct pieces of legislation in violation of the “same-subject rule” of Article III of the Pennsylvania Constitution. The original version of the Fair Share Act was passed as part of Act 57 of 2002, which amended the DNA Detection of Sexual and Violent Offenders Act and also modified joint and several liability law. Members of the Pennsylvania legislature successfully challenged Act 57 on the basis that it did not address a single theme in conformity with Article III. The legislature subsequently passed a new version of the Fair Share Act (Act 17) in 2011. Codified at 42 Pa.C.S. § 7102, the new Fair Share Act is in full force and effect today.

In Sernovitz v. Dershaw, 2015 Pa. LEXIS 2660 (Pa. Nov. 18, 2015), the Pennsylvania Supreme Court unanimously upheld the constitutionality of the wrongful birth and wrongful life statutes contained in Act 47. Rather than focusing on the political tremors underlying claims for wrongful birth, the court based its reasoning on the profound implications of retroactively striking down longstanding law relied upon by past, current and prospective parties.

Sernovitz centered on a failure to identify a genetic marker for disease during pregnancy. The plaintiff, Rebecca Sernovitz, underwent genetic testing during prenatal care. The results revealed she carried a gene mutation that would substantially increase the likelihood that her child would be born with a rare disorder called familial dysautonomia. Her treating obstetrician and gynecologist, Stuart Z. Dershaw, M.D., misinformed her that she was not a carrier. As such, Ms. Sernovitz and her husband did not abort the fetus. Thereafter, the couple gave birth to a son with familial dysautonomia. They sued for wrongful birth and emotional distress, claiming they would have obtained an abortion had they known Ms. Sernovitz was a carrier.

The Montgomery County Court of Common Pleas sustained the defendants’ preliminary objections, which argued that the plaintiffs’ claims were precluded by Act 47. The plaintiffs appealed on the basis that Act 47 violated the “single-subject rule” of Article III because it addressed multiple subjects. The Superior Court agreed with them and labeled the Act “a veritable potpourri of legislation” targeted toward post-trial matters in criminal cases. Accordingly, the court reversed and remanded the case back to the trial court for discovery and trial. The defendant physicians, joined by the General Assembly, appealed.

In reinstating the trial court’s ruling, the Pennsylvania Supreme Court ignored the political and emotional implications of sustaining a claim for wrongful birth and focused on procedural fairness. Quoting a former opinion, Chief Justice Saylor wrote, “[i]t would be arbitrary to preserve one set of provisions germane to one topic, and invalidate the remainder of the bill.” The court next considered the defendants’ argument that the laches doctrine shielded Act 47 from a procedural challenge. Laches, an equitable defense, precludes a plaintiff from pursuing a claim after “sleeping on his rights.” While the court did not agree that the plaintiffs had violated the laches doctrine, it nonetheless noted that “the longer an act has been part of the statutory law and relied on by the public and the government, the more disruption to society and orderly governance is likely to follow from its invalidation . . . Where, as here, such reliance has continued for more than [twenty] years, a presumption naturally arises that any process challenge is too stale to be cognizable regardless of whether the challengers exercised reasonable diligence.” The Supreme Court finished its analysis with the simple conclusion that the plaintiffs’ action was invalid because it was precluded by valid law. Even if Act 47 did violate the single-subject rule, after 22 years of presumed validity, it was immune from attack.

Consequently, the law in Pennsylvania remains that plaintiffs cannot sue for wrongful birth or wrongful life. Failure to properly interpret a genetic test, an ultrasound, a blood test, an amniocentesis or a similar prenatal study cannot serve as a basis for a medical malpractice action when the claim is that, “but for” the diagnosis, the fetus would have been aborted. Such claims should be attacked in preliminary objections or motions to dismiss at the earliest opportunity.

Critics of the ruling claim it contradicts traditional tort law. They analogize failure to identify a genetic marker with a classic negligence claim for failure to diagnose disease. They maintain Act 47 is politically dated. These critics ignore the devastating impact of retroactively striking down time-honored law, a beacon of predictability in society. While the emotional backdrop of a claim for wrongful birth will inevitably come to light in the future, most herald the Supreme Court’s decision to uphold the defendants’ right to be judged under existing law.

* Jack, a shareholder, and Laura, an associate, work in our Philadelphia, Pennsylvania office. Jack can be reached at 215.575.2787 or jcfarrell@mdwcg.com. Laura can be reached at 215.575.2842 or ljpersun@mdwcg.com.

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_{Defense Digest, Vol 22, No. 1, March 2016}

_{Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}