Bylined Articles

Potential Liability for Wrongful-Birth Claims

By Demetrios Batsides and Stephanie Sgambati
February 14, 2014
The Litigation Daily

Jim Batsides
Jim Batsides
Stephanie Sgambati
Stephanie Sgambati

On Nov. 14, 2012, in Sernovitz v. Dershaw, 2012 Pa. Super. 248 (Pa. Super. Ct. 2012), the Pennsylvania Superior Court held that 42 Pa.S.C.A. § 8305, which prohibited the tort claims of wrongful birth and wrongful life, was unconstitutional because the manner in which the bill was enacted violated Article III, Section 3 of the Pennsylvania Constitution. Specifically, the Superior Court held that Section 8305 violated the single-subject rule, which requires that a bill address a single subject that is clearly expressed in its title.

The claims raised in Sernovitz are classic wrongful-birth and wrongful-life claims. Rebecca Sernovitz sought prenatal care in early 2008 and underwent genetic testing because both Rebecca and Lawrence Sernovitz were of Ashkenazi Jewish descent. The Sernovitzes claim that Rebecca Sernovitz's testing revealed her to be a carrier of familial dysautonomia (FD), but she was erroneously informed that all of her tests were negative, according to the opinion. Samuel Sernovitz was born in September 2008 and was diagnosed with FD shortly thereafter. FD is an autosomal recessive disorder, which can only occur in a child if both parents are carriers of the genetic mutation.

Following Samuel's diagnosis, Rebecca Sernovitz was informed that she is a carrier for FD. The Sernovitzes filed a wrongful-birth claim on their own behalf and a wrongful-life claim on behalf of their son. They claim that had they known Rebecca Sernovitz was an FD carrier, Lawrence Sernovitz would also have been tested at that time. When he was revealed to be a carrier, they would have tested the fetus and terminated the pregnancy upon learning that it was affected with FD.

Wrongful birth is a tort claim based on the deprivation of an opportunity to terminate a pregnancy. The claim is brought by the parents who were deprived of the option to terminate their pregnancy and the recovery sought generally includes the increased costs associated with raising a child with an illness, as well as compensation for emotional distress. Wrongful-life claims are brought by the child and assert that the child would have been better off never having been born.

The majority of states permit wrongful-birth claims, though far fewer permit wrongful-life claims. Some states ban both wrongful-birth and wrongful-life claims by statute. Pennsylvania had such a statute in place since 1988. Prior to the enactment of Section 8305, Pennsylvania permitted only wrongful-birth claims. The substantive constitutionality of Section 8305 had been challenged and upheld. The Sernovitzes' claims in this case did not raise a substantive challenge to the ideology underlying the statutory ban of wrongful-birth and wrongful-life claims; rather, they claimed that Section 8305 of SB 646 violated the single-subject rule.

The single-subject rule is contained in Article III of the Pennsylvania Constitution and states, "No bill shall be passed containing more than one subject, which shall be clearly expressed in its title, except a general appropriation bill or a bill codifying or compiling the law or a part there of ." The purpose of such a rule is to prevent the attachment of unpopular riders to popular bills, to ensure that bills receive proper review and consideration, and to protect the integrity of the governor's veto power. The Sernovitz court noted that while a single subject is defined broadly, it is not without limitation, and the enforcement of the single subject rule serves as a balance between legislative freedom and judicial oversight. The court further stated that bills are presumptively valid unless clearly unconstitutional, placing a substantial burden on the party challenging constitutionality. Of further interest, the Office of the Attorney General has not participated in this case at the trial or appellate levels, despite being properly served and having the opportunity to defend Section 8305, an oddity of which the court also took note.

The Sernovitz court engaged in a detailed analysis of the various sections of SB 646, as well as the legislative history of the bill, and found that the stated subject—amending the Judicial Code—was overly broad and failed to satisfy the single-subject requirement. The bill was originally passed in the state Senate as a single provision allowing f or the appointment of substitute bail commissioners in Philadelphia (Section 1125). The bill was then sent to the state House of Representatives, where a provision regarding sentencing for offenses committed while impersonating an officer (Section 9719) was added. On the day the House was to vote on the bill, several additions were made, including direct appeals to the Pennsylvania Supreme Court in certain circumstances (Section 722); the prohibition on wrongful-birth and wrongful-life claims (Section 8305); limited defenses available for claims of an injury that occurred in utero (Section 8306); dismissal of criminal cases in certain circumstances (Section 8933); and the Post-Conviction Relief Act (Sections 9541-9546).

The court noted that Sections 8305 and 8306 were debated before ultimately being passed. The court found that there is no overarching theme or legislative purpose that connects the various sections of SB 646, and that the majority of the provisions address post-trial criminal matters, which is a proper subject within the meaning of the single-subject rule. Sections 1125, 8305, 8306 and 8933 were deemed severable from SB 646 and were stricken as unconstitutional.

Following the decision, the defendants made an application for reargument en banc, which the Superior Court denied Jan. 25, 2013. On Feb. 25, 2013, the defendants petitioned the Pennsylvania Supreme Court for an allowance of appeal. The Supreme Court withheld a decision on the allowance of appeal pending the disposition of Commonwealth v. Neiman, 2013 Pa. LEXIS 3018 (Pa. 2013). On Dec. 16, 2013, the Supreme Court issued an opinion in Neiman, finding Act 152 violated the single-subject rule and the sections of Act 152 were not severable. Act 152 was stricken in its entirety. The en banc Superior Court had found that Act 152 violated the single-subject rule but its sections were severable. Similarly, the Sernovitz court found the sections of SB 646 to be severable and struck four sections, including Section 8305. To date, the Supreme Court has not issued a decision on the petition for allowance of appeal.

Barring the enactment of new legislation, wrongful-birth claims are now permissible in Pennsylvania because they were permitted by case law prior to the enactment of Section 8305, per Ellis v. Sherman, 512 Pa. 14 (1986), and Speck v. Finegold, 497 Pa. 77 (1981). Wrongful-life claims are no longer prohibited, but it is unlikely that they would be permissible because pre-Section 8305 case law did not permit wrongful-life claims.

What is most noteworthy is the uncertainty in how wrongful-birth claims will be handled in Pennsylvania. Wrongful-birth litigation has grown increasingly popular in recent years, particularly with the advancements in prenatal screenings and the ability to evaluate a fetus for genetic conditions in utero. Settlement and verdict values of such claims are often significant and rank among the highest reported recoveries. States that have always permitted wrongful-birth claims have developed extensive jurisprudence on what types of recovery are permissible and what standard of care applies to various health care providers. Pennsylvania courts have not addressed the nature of a wrongful-birth claim and the subsequent recovery in 25 years.

Health care providers in Pennsylvania that had previously been shielded from wrongful-birth and wrongful-life claims are now subject to suits seeking recovery for such claims. Medical practitioners involved in prenatal screening, diagnosis and treatment, and their insurance carriers, should now well consider the potential liability associated with such claims following their resurrection af ter more than two decades of statutory protection.

Demetrios C. "Jim" Batsides is a partner, and Stephanie Sgambati an associate, at Duane Morris. They work in the firm's international trial practice group.

This article originally appeared in The Litigation Dailyl and is republished here with permission from