The opinion of the court was delivered by
This is a medical malpractice wrongful birth action brought in
the United States District Court for the District of Kansas by
John and Nicole Arche against the United States of America,
Department of the Army. Chief Judge Earl E. O'Connor of the
United States District Court has certified the following
questions for resolution by this court pursuant to the Uniform
Certification of Questions of Law Act, K.S.A. 60-3201 et seq.:
1. Does Kansas law recognize a cause of action for the wrongful
birth of a permanently handicapped child?
2. If Kansas does recognize such a cause of action, what is the
extent of damages which may be recovered upon proper proof?
Chief Judge O'Connor rejected defendant's request that the
issue of the appropriate standard of care be certified to this
court. The facts of the case are thus irrelevant and will not be
noted here. We limit our opinion to a determination of the two
questions certified, neither of which has been resolved in our
prior cases. We emphasize that in answering these questions we
express no opinion as to whether plaintiffs should ultimately
prevail in this action.
A discussion of three types of related malpractice torts is
helpful in our analysis of the certified questions. These torts
wrongful pregnancy, wrongful life, and wrongful birth have
evolved because of advances in technology and the recognition of
a woman's right to prevent conception or to terminate a
pregnancy. See generally Speck v. Finegold, 497 Pa. 77,
439 A.2d 110 (1981); Comment, "Wrongful Life": The Right Not to be
Born, 54 Tul. L. Rev. 480 (1980).
In the tort of wrongful pregnancy, parents who have taken
medical steps to prevent pregnancy bring suit for damages caused
by a child nevertheless being born, even if that child is born
healthy. See Bruggeman v. Schimke, 239 Kan. 245
, 248, 718 P.2d 635
(1986). The majority of states addressing the question,
including Kansas, have recognized a cause of action for limited
damages for wrongful pregnancy. See Johnston v. Elkins,
241 Kan. 407
, 412, 736 P.2d 935 (1987), in which we recognized a
cause of action for an unsuccessful vasectomy resulting in the
conception and birth of a healthy child. However, we have
consistently refused to allow damages beyond those suffered prior
to and at the birth of the child. Johnston, 241 Kan. at 413. In
refusing to allow damages for the costs of rearing a normal and
healthy child in Byrd v. Wesley Med. Center, 237 Kan. 215
699 P.2d 459 (1985), we noted:
"[W]e are not concerned here with an unsuccessful
sterilization proceeding followed by the birth of a
mentally retarded or physically handicapped child.
Our concern here is only with items of damages
claimed when it is alleged that a sterilization
procedure was negligently performed, and thereafter,
a normal, healthy child was born to the `sterilized'
The tort of wrongful life constitutes an action brought by an
impaired child, whereby the child alleges that, but for the
defendant's negligent advice or treatment, the child would not
been born. The impairment is not caused by the defendant; the
only negligence is in not determining or informing the parents of
the defect before birth. Bruggeman v. Schimke, 239 Kan. at 248.
We have refused to recognize a tort of wrongful life.
Bruggeman, 239 Kan. at 254. The majority of states addressing
the question have refused to recognize the cause of action. See
Bruggeman, 239 Kan. at 249. There is no legal right not to be
born, and allowing an action for being born would create a new
tort, rather than applying established tort principles to
The tort of wrongful birth differs from the tort of wrongful
life in that the suit is brought by the parents, who claim they
would have avoided conception or terminated the pregnancy had
they been properly advised of the risks or existence of birth
defects to the potential child. See Bruggeman, 239 Kan. at 248.
See generally Annot., Tort Liability for Wrongfully Causing One
to be Born, 83 A.L.R.3d 15. Whether a cause of action for
wrongful birth will be recognized in the case of a child born
with defects is a question of first impression in Kansas.
Twenty courts> in other jurisdictions have recognized the
action. State court opinions recognizing the action include:
Lininger v. Eisenbaum, 764 P.2d 1202 (Colo. 1988); Haymon v.
Wilkerson, 535 A.2d 880 (D.C. 1987); Garrison by Garrison v.
Medical Center of Delaware, Inc., 571 A.2d 786 (Del. 1989)
(unpublished order of the court, text of order in Westlaw);
Fassoulas v. Ramey, 450 So.2d 822 (Fla. 1984); Blake v. Cruz,
108 Idaho 253, 698 P.2d 315 (1984) (superseded by Idaho Code §§
5-310 and 5-311 ); Goldberg by and through Goldberg v.
Ruskin, 128 Ill. App.3d 1029, 471 N.E.2d 530 (1984), aff'd
113 Ill.2d 482, 499 N.E.2d 406 (1986); Pitre v. Opelousas General
Hosp., 530 So.2d 1151 (La. 1988); Viccara v. Milunsky,
406 Mass. 777, 551 N.E.2d 8 (1990); Proffitt v. Bartolo, 162 Mich. App. 35,
412 N.W.2d 232 (1987); Smith v. Cote, 128 N.H. 231,
515 A.2d 341 (1986); Schroeder v. Perkel, 87 N.J. 53,
432 A.2d 834 (1981); Bani-Esraili v. Lerman, 69 N.Y.2d 807,
513 N.Y.S.2d 382, 505 N.E.2d 947 (1987); Speck v. Finegold,
497 Pa. 77 (superseded by 42 Pa. Cons. Stat. Ann. § 8305 [Purdon
1990 Supp.]); Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975);
Naccash v. Burger, 223 Va. 406, 290 S.E.2d 825 (1982);
Harbeson v. Parke-Davis, Inc.,
98 Wn.2d 460, 656 P.2d 483 (1983); James G. v. Caserta, ___
W. Va. ___, 332 S.E.2d 872 (1985); Dumer v. St. Michael's
Hospital, 69 Wis.2d 766, 233 N.W.2d 372 (1975). Federal court
opinions recognizing the action include: Phillips v. U.S.,
575 F. Supp. 1309 (D.S.C. 1983) (applying South Carolina law); Robak
v. U.S., 658 F.2d 471 (7th Cir. 1981) (applying Alabama law).
Arizona, California, and Utah have sometimes been cited as
states recognizing the action, but the issue has not been clearly
presented and determined in those states. See Walker by Pizano
v. Mart, 164 Ariz. 37, 790 P.2d 735 (1990); Andalon v. Superior
Court, 162 Cal.App.3d 600, 208 Cal.Rptr. 899 (1984); Payne by
and through Payne v. Myers, 743 P.2d 186 (Utah 1987) (see Utah
Code Ann. § 78-11-23 et seq. ).
Defendants cite three decisions in which courts> have refused to
recognize wrongful birth actions: Wilson v. Kuenzi, 751 S.W.2d 741
(Mo.), cert. denied 109 S.Ct. 229 (1988); Azzolino v.
Dingfelder, 315 N.C. 103, 337 S.E.2d 528 (1985), cert. denied
479 U.S. 835 (1986), reh. denied 319 N.C. 227, 353 S.E.2d 401
(1987); and Spencer by and through Spencer v. Seikel, 742 P.2d 1126
Wilson, 751 S.W.2d 741, has been recently distinguished by
the Missouri Supreme Court in Shelton v. St. Anthony's Medical
Center, 781 S.W.2d 48, 50 (Mo. 1989). In Shelton the court
allowed a cause of action because the plaintiff did not merely
state that she would have terminated the pregnancy (a claim
barred by statute), but that she suffered emotional distress from
the defendants' failure to properly interpret ultrasound tests
and advise her that her fetus was not developing normally.
Azzolino, 315 N.C. 103, was distinguished in Gallagher v.
Duke University, 852 F.2d 773, 776-78 (4th Cir. 1988), where the
federal court, applying North Carolina law, allowed a cause of
action to a woman who conceived and gave birth to a genetically
impaired child after being incorrectly informed by defendants
that her first child's impairments were not genetically caused.
In Gallagher, the court distinguished the plaintiff's decision
to conceive based on negligent advice from the plaintiff's
claim in Azzolino that, after conception, she should have
been advised of the availability of amniocentesis.
Spencer, 742 P.2d 1126, is distinguishable from other
wrongful birth cases in that the physician in that case fully
informed the mother that tests showed the fetus was suffering
from hydrocephalus and fully informed the mother of the effects
of that impairment. The mother's only claim was that the
physician did not inform her of the option of abortion. None of
the cited cases recognizing the action of wrongful birth rely on
this omission; rather, the negligence is in not discovering the
We note that the Minnesota Supreme Court has upheld the
constitutionality of a statute prohibiting wrongful birth claims.
Hickman v. Group Health Plan, Inc., 396 N.W.2d 10 (Minn. 1986).
A bill prohibiting wrongful birth or wrongful life actions was
introduced in Kansas in 1983, but was not passed out of the
Senate Judiciary Commitee. 1983 Senate Bill 258. Note Damages:
Recovery of Damages in Actions for Wrongful Birth, Wrongful Life
and Wrongful Conception, 23 Washburn L.J. 309 (1984).
Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967), was
the first case in the United States to address the question of
whether a cause of action for wrongful birth would be judicially
recognized. The New Jersey Supreme Court refused to recognize
such a cause of action, partly because of its finding that
abortion violated public policy and partly because abortion was
then illegal under state statute except to save the mother's
During the next twelve years, two major changes occurred: The
ability to detect birth defects in utero greatly increased, and
the United States Supreme Court recognized a woman's right to
obtain an abortion. Roe v. Wade, 410 U.S. 113, 35 L.Ed.2d 147,
93 S.Ct. 705, reh. denied 410 U.S. 959 (1973).
These changes caused the New Jersey Supreme Court to reject its
former reasoning and recognize a cause of action for wrongful
birth in Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979). The
court held that Roe v. Wade, 410 U.S. 113, and Doe v. Bolton,
410 U.S. 179, 35 L.Ed.2d 201, 93 S.Ct. 739 (1973), had
established that public policy now supported, rather than
controverted, the proposition that a woman could not be denied a
meaningful opportunity to make the decision to have an abortion.
80 N.J. at 431-32. In Berman, the defendant physicians did not
inform the plaintiffs of available prenatal testing procedures
which would have shown that Mrs. Berman was carrying a fetus with
Down's syndrome. The court disallowed a cause of action for
wrongful life, but allowed the cause of action for wrongful
birth, acknowledging that causation of damages might be found
between the defendants' failure to inform and the denial of a
woman's constitutional right to choose whether to terminate her
A plaintiff must prove three elements to prevail in a medical
malpractice action in this state: "(1) that a duty was owed by
the physician to the patient; (2) that the duty was breached; and
(3) that a causal connection existed between the breached duty
and the injury sustained ...