Should Courts Award Child-Rearing Damages for “Wrongful Birth” in Cases of the Rape of a Minor?

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The issue of whether there should be a right to abortion in cases of rape has arisen again in response to comments by teen sensation Justin Bieber. The 16 year-old pop star was asked about abortion in rape cases, and he responded:

“That’s just really sad, but everything happens for a reason.”

“I don’t know how that would be a reason,” Bieber continued. “I guess I haven’t been in that position, so I wouldn’t be able to judge that.”

This post, though, is not about the right to abortion, either in cases of rape or consensual sex. It is about what happens when a rape victim does not have an abortion and delivers a child.  The vast majority of jurisdictions refuse to award child-rearing damages under a “wrongful birth” or “wrongful pregnancy” theory.  Adopting this logic, the Supreme Court of Mississippi found that an 11 year-old rape victim could not recover damages for “wrongful birth” in its recent opinion in Mississippi State Federation of Colored Women’s Club Housing for Elderly in Clinton, Inc. v. In the Interest of L.R., 2010 WL 5173604 (Miss. 2010). I disagree.

In L.R., 11 year-old L.R. was raped while visiting her father at his apartment, became pregnant as a result of the rape, and eventually gave birth to a child. Her parents brought a premises-liability action on her behalf against the owner of the apartment building and the apartment management company. If you want the full factual context of the case, you can read the court’s opinion.

I’m not so much concerned with the issue of whether the defendants were actually liable as with the issue of whether, assuming that the defendants were liable, the plaintiffs could recover child-rearing “wrongful birth” damages. The trial court precluded the plaintiffs from presenting testimony on how much it would cost L.R. to raise her child, and, on the plaintiffs’ cross-appeal, the Supreme Court of Mississippi noted that the issue was one of first impression in Mississippi.

According to the court, though

The overwhelmingly prevailing rule in other jurisdictions is that a child is not damage….Even if it were otherwise, the benefits of having a child-a value impossible to determine-would have to be deducted from the award. See Girdley v. Coats, 825 S.W.2d 295, 298 (Mo. 1992).

Ultimately, the Supreme Court of Mississippi sided with the “overwhelming majority of jurisdictions,” and found that plaintiffs cannot recover child-rearing damages for “wrongful birth” or “wrongful pregnancy.” I think that the opinion of the Supreme Court of Indiana in Chaffee v. Seslar, 786 N.E.2d 705, 708 (Ind. 2003), sets forth the logic most courts use in refusing to award such damages:

Although raising an unplanned child, or any child for that matter, is costly, we nevertheless believe that all human life is presumptively invaluable. This Court has held that “life…cannot be an injury in the legal sense.”…A child, regardless of the circumstances of birth, does not constitute a “harm” to the parents so as to permit recovery for the costs associated with raising and educating the child. We reach the same outcome as the majority of jurisdictions, and hold that the value of a child’s life to the parents outweighs the associated pecuniary burdens as a matter of law.

I’m not sure that I agree with this perspective, but my point in this post is not to argue about whether courts generally should award child-rearing damages for “wrongful pregnancy” or “wrongful birth.” My point is to argue that courts should award such damages in cases where the pregnancy results from the rape of a minor.

Research reveals that teenagers who become pregnant are less likely to graduate from high school, stay out of poverty, earn a living wage, remain healthy, etc. than their non-pregnant counterparts. See, e.g., Why It Matters: Teen Pregnancy. I assume that the picture is even grimmer for preteen pregnancies. Why can’t courts award “wrongful pregnancy” or “wrongful birth” damages based upon the harm to the mother in such cases without having to make a negative comment on the value of the child’s life? Of course, the same could be said in any “wrongful pregnancy” or “wrongful birth” case, but it seems to me that it is especially clear that courts can and should award such damages to teen moms based upon the unique harms that they suffer.

-Colin Miller

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