'There are No Wrongful Births': Texas Lawmaker Tries to Stop Lawsuits

Joe Pojman, executive director of the Texas Alliance for Life, told Catholic News his organization was “thrilled” with the state Senate’s approval of legislation intended to stop parents from suing doctors if their baby is born with a birth defect that the doctor didn’t warn them about.

“It reverses a decades-old injustice and bad public policy that devalues babies, both unborn and born, who have a disability,” Pojman said. “In our view, S.B. 25 eliminates wrongful birth lawsuits while holding doctors accountable to practicing good medicine.”

But Heather Busby, executive director of NARAL Pro-Choice Texas, said all the legislation would do is encourage doctors to lie to their patients so that women won’t have abortions.

“Pregnant Texans deserve to feel like they can trust their doctor to provide them with all the information – and when the doctor does not do that, those families deserve to have a legal avenue to seek compensation to care for special-needs children,”  Busby said in a statement to the Huffington Post.

However, Senate Bill 25 sponsor Sen. Brandon Creighton (R) said without the legislation, doctors have “an invitation to be sued for just practicing medicine.”

When he introduced the legislation, Creighton said based on legal precedent doctors can be assigned liability for children born with abnormalities if they identified those abnormalities in utero and failed to advocate for termination, resulting in what’s termed a “wrongful birth.”

Creighton and others backing his bill point to a 1975 Texas court case, Jacobs v. Theimer, in which Dortha Jean Jacobs and her husband sued Dr. Louis M. Theimer for failing to diagnose rubella that Jacobs contracted in the first trimester of her pregnancy.

She gave birth to a child whose major organs were defective.

The Jacobs family won and was awarded “expenses reasonably necessary for the care and treatment of their child’s physical impairment.”

Similar wrongful birth lawsuit damage awards like that have cost doctors tens of millions of dollars, Creighton said. As a result, he argued, doctors found themselves in the unenviable position of taking the safest route available — advocating for abortion.

“It is unacceptable that doctors can be penalized for embracing the sanctity of life,” Creighton added. “It breaks my heart that courts have punished doctors for the birth of children with Down syndrome or a missing limb.”

However, he also admitted that wrong birth lawsuits are rare. Creighton told CNN he didn’t know how many had been filed over the years in Texas.

But, Creighton argued, it doesn’t matter how many of these lawsuits had been filed. What concerns him is the possibility that OB-GYNs feel they have to recommend abortions to avoid court.

And even more important, to Creighton’s mind, is the principle that “there are no wrongful births.”

Jennifer Allmon, executive director of the Texas Catholic Conference of Bishops, said the very idea of a wrongful birth lawsuit also sends a “terrible message to disabled children in Texas” because it “is based on the hurtful premise that their child with disabilities should not have been born.”

Yet, rather than making the practice of medicine more appealing in Texas or saving the unborn, Sen. Jose Rodriguez (D) told the Texas Tribune the legislation was more about “restricting and further limiting a woman’s right to exercise her choice about what she’s going to do in the case of serious defects to the fetus.”

Kyleen Wright, president of Texans for Life, said that argument doesn’t hold water.

"This is a bill without a hidden agenda," said Wright at a Senate committee hearing. ”It is simply a bill that rights a wrong and protects doctors."

Getting this legislation to the governor’s desk isn’t going to be easy. Similar legislation, HB 3008, died in a House committee in 2015.

Creighton told The Blaze he knows it is going to be an uphill fight against an orchestrated campaign by Democrats and pro-choice advocates against S.B. 25.

Creighton accused the Huffington Post of running a “fake news” article on his bill that “launched a groundswell of concern” about the legislation.

“The Huffington Post article that did not ask me to participate in the interview, failed to report to the public the facts that everyone certainly deserves when they are considering judgment on this particular effort,” he said.

Creighton also said the argument that his legislation would permit or encourage OB-GYNs to hide the truth when treating pregnant women is an absolute fallacy.

“Nothing in this bill relieves a physician of any negligent behavior,” Creighton said. “The bill does not permit a physician to lie.”