Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979).
In Berman v. Allan, the Supreme court of New Jersey addressed the topics of wrongful birth and wrongful life for the first time since its much quoted decision of Gleitman v. Cosgrove. The Gleitman decision was the first in what has developed into a series of cases in which a physician's alleged negligent errors in prenatal diagnosis or genetic counseling and testing is claimed to have thwarted the parents' desire not to give birth to a child suffering from severe physical and mental abnormalities. Characteristic of the negligent genetic counseling cases is the parents' allegation that either they would not have conceived or, more frequently, that they would have aborted their afflicted fetus had the physician not been remiss in diagnosing the impairments their child would suffer. Further, the parents usually bring an action on behalf of their child based upon his or her crippling abnormalities.
Such a claim was made by the parents and their physically and mentally impaired child in Gleitman. The decision came at a time when abortions were, for the most part, illegal and when the courts were denying parents' causes of action in negligent sterilization cases on the premise that the birth of a child was always a benefit and never a compensable injury. Thus, when the Gleitmans claimed to have been negligently denied the opportunity to abort because of the physician's inaccurate assurance the fetus would be unaffected by Mrs. Gleitman's Rubella, the court found the claim was not actionable." Public policy, the court reasoned, was against abortion. The court found as a second obstacle to recovery the impossibility of measuring the joys and benefits of parenthood against the alleged emotional and pecuniary losses resulting from raising their special child. The court also dismissed the child's cause of action saying the child had made it impossible to assess his damages by claiming he should not have been born or had been wronged by not being aborted. Nonexistence is a state which is incapable of evaluation, the court reasoned, and therefore, the comparison between what the child must suffer in his impaired state and what he would endure if consigned to nonexistence cannot be made. …
This note will examine the Berman decision within the context of the trends in genetic counseling and negligent sterilization cases that have evolved since the New Jersey Supreme Court decided Gleitman. The note will also discuss an alternative approach to addressing both the parents' and child's cause of action.
"Wrongful Birth: Judicial Reticence with an Emerging Tort: The Negligent Performance of Genetic Counseling,"
University of Dayton Law Review: Vol. 6:
1, Article 8.
Available at: https://ecommons.udayton.edu/udlr/vol6/iss1/8