On November 14, 2012, three judges of the Superior Court issued an opinion in Sernovitz v. Dershaw, which explained that the manner in which the law banning wrongful birth and wrongful death actions were created was unconstitutional.
First, before anyone begins to worry that the flood gates of litigation are going to open up allowing for all kinds of new lawsuits and doctors running fearfully from the Commonwealth, let’s begin at the end. The concurring opinion written by Judge Ford Elliot states, “…regardless of this statute, a cause of action for “wrongful life” has never been recognized as a legally cognizable action at law in this Commonwealth.”
Secondly, the opinion is about the manner in which legislation was passed, not about whether wrongful life or wrongful birth claims are acceptable torts in Pennsylvania. The crux of the opinion was that the statutes, 42 Pa. C.S.A. section 8305 & 8306, were passed as an ancillary part of a bill which had nothing to do with tort law. The bill in question was originally Senate Bill 646 of 1987 which eventually passed as Act 47 of 1988. The Court said, that as the main purpose of the bill concerned the post-trial part of criminal proceedings, and the enactment of sections 8305 and 8306 were added later, that the severable sections of the Act violated Pennsylvania’s Constitution, Article III, section 3. Basically, the legislature added these parts onto a bill which was outside its single-purpose, and that violates the constitution.
Finally, the case was remanded to the trial court for further proceedings, meaning that there should now be the direct question of whether one can bring a case for wrongful life and/or wrongful birth. The first being a claim of the child for having been born when it was likely the life would be one of suffering that could have been avoided, but for a doctor’s negligence. The second being the parents’ claim for the suffering they endure in raising a child whose dysfunction could have been avoided.
Regardless of your point of view on the ideology surrounding the legal concepts, this will be an interesting case to follow as it proceeds from the lower court to the possibility of further challenges to the viability of the causes of action.
Joe Chapman
November 15, 2012