Medical Expert Witness

Law Barring ‘Wrongful Birth’ Suits To Stay

The state Supreme Court ruled against the parents of a girl born with a severe brain abnormality who said they would have opted for an abortion had they known of their daughter’s medical problems months before her May 2014 birth… Supreme Court Upholds Law Barring ‘Wrongful Birth’ Suits, John Hanna, 2021


The girl’s brain abnormality left her permanently disabled and unable to ever perform “activities of daily living,” according to court documents. The parents, Alysia Tillman and Storm Fleetwood, said that four months before the birth, Dr. Katherine Goodpasture told them that an ultrasound showed a healthy female fetus.


The parents said the ultrasound actually showed severe deformities and brain defects, something Goodpature disputed. Another ultrasound a few days before the girl’s birth showed a problem with her brain.


The parents said Tillman was deprived of her right to make an informed decision about her pregnancy and they sued to recover the extra costs of caring for a severely disabled child. A district judge in Riley County in northeastern Kansas dismissed the case after Goodpasture argued that their lawsuit violated the state’s law against wrongful birth lawsuits.


The Republican-controlled Legislature and then-GOP Gov. Sam Brownback passed the law against wrongful birth lawsuits in 2013 at the urging of abortion opponents. It overturned a 1990 state Supreme Court ruling saying Kansas law allowed such lawsuits, and current Democratic Gov. Laura Kelly, then a state senator, voted against it.


The parents’ attorneys argued that the law violated provisions of the state’s bill of rights declaring the right to a jury trial “inviolate” and providing a right to “remedy by due course of law” for injuries. But four of the seven state Supreme Court justices concluded that the state’s 1850s founders didn’t recognize wrongful birth as a legal concept, making it an “innovation” that isn’t covered by those constitutional provisions.


“It is a new species of malpractice action first recognized in 1990,” Justice Dan Biles wrote in their opinion.


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