Arizona Bill Seeks Ban on Wrongful Birth Malpractice Lawsuits

Some lawmakers in Arizona want to prevent parents of children born with birth defects or malformations from seeking compensation from doctors or medical providers through a malpractice lawsuit over failing to recognize or diagnose the problems before the child is born. 

A proposal to ban such “wrongful birth” lawsuits was recently introduced into the Arizona legislature by Nancy Barto, a Republican state senator.

Barto says that the lawsuits assume that someone should be blamed for a child born with disabilities. Opponents of the legislation say that it is a backdoor approach for restricting women’s health rights.

If passed, the law would make Arizona the 10th state to ban wrongful birth malpractice lawsuits, in which parents pursue compensation against medical providers for failing to warn about the risk of conceiving or giving birth to a child with serious genetic or congenital abnormalities.

Such medical negligence may prevent parents from making a truly informed decision about whether or not to carry the child to term.

Supporters of Barto’s legislation, including the conservative Center for Arizona Policy, which lobbied Barto to introduce the measure, are opposed to laws allowing women to have abortions.

In 1983, the Arizona Supreme Court ruled that parents could make such claims in the state. The proposed legislation would overturn that ruling.

About 25 states have specific provisions that allow medical malpractice lawsuits over wrongful birth, but such cases are rare.

One of the more recent claims was a claim brought by a Florida couple, Ana Mejia and Rodolfo Santana, who were awarded $4.5 million in damages after a doctor and a technician signed off on an ultrasound examination report that indicated the couple’s son, Bryan Santana, had all four limbs. He was born with no arms and only one leg. They accused the defendants of negligence, indicating that if they had been properly informed about the child’s problems they would have terminated the pregnancy.

Barto’s proposal would also prevent wrongful pregnancy claims, such as in cases where someone has been made sterile through surgery or told they could not conceive or give birth.