Arizona’s Senate Bill 1359 adds the following section to the Arizona Revised Statutes:
12-718. Civil liability; wrongful birth, life or conception claims; application
A. A person is not liable for damages in any civil action for wrongful birth based on a claim that, but for an act or omission of the defendant, a child or children would not or should not have been born.
B. A person is not liable for damages in any civil action for wrongful life based on a claim that, but for an act or omission of the defendant, the person bringing the action would not or should not have been born.
C. This section applies to any claim regardless of whether the child is born healthy or with a birth defect or other adverse medical condition.
D. This section does not apply to any civil action for damages for an intentional or grossly negligent act or omission, including an act or omission that violates a criminal law.
My reading of the statute is that this doesn’t prevent a doctor from voluntarily assuming a duty to disclose everything (or, in the alternative, compensate a parent or child). (I would think that if this and similar statutes pass, there would be an industry of doctors trying to attract more sophisticated customers with assurances of truth-telling.) If a patient or child then litigated under such a contract, perhaps this wouldn’t be a “civil action for wrongful birth” or “civil action for wrongful life”, as required by subsections A and B, but rather just a contractual litigation based on the misrepresentation.
But it seems that the statute could also be interpreted more strictly: if the doctor commits to compensate “for wrongful birth or wrongful life”, then the measure of damages would still be wrongful birth or wrongful life, so perhaps the action, though contractual, could still be labeled a “civil action for wrongful life [or birth]”, and thus the statute could be construed to bar even such a contractual litigation?
Even under that reading, it seems that a doctor could still commit to disclose everything or else pay some liquidated fee, say $10,000.
I haven’t read any cases or commentary on this issue, so it’s entirely possible that this has been discussed already. What do you folks think?