Elliott v. Brown, 361 So. 2d 546 (Ala. 1978). · Go Syfert
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Elliott v. Brown, 361 So. 2d 546 (Ala. 1978). Cases Citing This Book View Copy Cite
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cited 2× by 1 distinct case, last quoted 2006 · (i.e., claims alleging that but for planned parenthood's wrongful conduct j.l.d. would not have been born) and that ⚠ not in text
cited 2× by 1 distinct case, last quoted 2006 · …that the defendant's alleged preconception negligence caused her birth; i.e., wrongful life. ≈ altered
cited 2× by 1 distinct case, last quoted 1982 · …the value of life with impairments against the nonexistence of life itself. ✓
84 citation events (19 in the last 25 years) across 29 distinct courts.
Strongest positive: Jean Ho-Rath v. Corning Incorporated Yendee Ho-Rath v. Rhode Island Hospital (ri, 2022-05-27)
Treatment trajectory · 1979 → 2026 · click a year to view as-of
1979 2002 2026
Top citers, strongest first. 15 distinct citers. How cited ↗
discussed Cited as authority (rule) Jean Ho-Rath v. Corning Incorporated Yendee Ho-Rath v. Rhode Island Hospital
R.I. · 2022 · confidence medium
D.D. v. Idant Laboratories, 374 F. App’x 319 (3d Cir. 2010) (applying New York state law and holding that a child could not pursue negligence claim against sperm bank for allegedly improperly testing and screening sperm for genetic abnormalities because there is no duty of care owed to an individual not yet in utero when the alleged negligence occurred); Clark v. Children’s Memorial Hospital, 955 N.E.2d 1065, 1083 (Ill. 2011) (holding that “[a] child who is born with a genetic or congenital condition does not have a cause of action * * * against a health care provider whose breach of the…
discussed Cited as authority (rule) L.K.D.H. v. Planned Parenthood of Alabama
Ala. Civ. App. · 2006 · confidence medium
Given the ultimate purpose of the procedure undertaken by L.K.D.H., it is unclear to me whether the entirety of the caveat enunciated by the Alabama Supreme Court in Elliott v. Brown, 361 So.2d 546, 548 (Ala. 1978), applies here.
discussed Cited as authority (rule) Willis Ex Rel. Willis v. Wu
S.C. · 2004 · confidence medium
E.g., Elliott v. Brown, 361 So.2d 546, 548 (Ala.1978); Walker by Pizano v. Mart, 164 Ariz. 37 , 790 P.2d 735, 740 (1990); Lininger by Lininger v. Eisenbaum, 764 P.2d 1202, 1209-10 (Colo.1988) (en banc); Garrison v. Medical Center of Delaware, Inc., 581 A.2d 288, 293-94 (Del.1989); Kush v. Lloyd, 616 So.2d 415, 423 (Fla.1992); Siemieniec v. Lutheran Gen.
discussed Cited as authority (rule) Canesi Ex Rel. Canesi v. Wilson (2×)
N.J. · 1999 · confidence medium
See Berman, supra, 80 N.J. at 429-30 , 404 A. 2d 8 ; see also Bruggeman v. Schimke, 239 Kan. 245 , 718 P. 2d 635, 642 (1986) (refusing to recognize cause of action for wrongful life because infant with defect has suffered no legally cognizable wrong by being born); Elliott v. Brown, 361 So. 2d 546, 548 (Ala.1978) (refusing to recognize cause of action for wrongful life because "a legal right not to be born is alien to the public policy of [Alabama] to protect and preserve human life"). [3] The Court stressed the "strong conception of a patient's right of self-determination" as the basis for th…
discussed Cited as authority (rule) Beardsley v. Wierdsma (2×)
Wyo. · 1982 · confidence medium
The vast majority of cases have refused to recognize a cause of action for “wrongful life” on behalf of a child based on the rationale that there is no legal right not to be born. 1 The Alabama Supreme Court in Elliott v. Brown, Ala., 361 So.2d 546, 548 (1978) stated: “ * * * Fundamental to the recognition of such a cause of action [wrongful life] is the notion that the defendant has violat ed some legal right of plaintiff’s and as a result she has suffered injury. * * * “We hold that there is no legal right not to be born and the plaintiff has no cause of action for ‘wrongful life…
cited Cited "see" Kassama v. Magat
Md. Ct. Spec. App. · 2001 · signal: see · confidence high
See Elliott v. Brown, 361 So.2d 546 (Ala.1978); Walker by Pizano v. Mart, 164 Ariz. 37 , 790 P.2d 735 (1990); Lininger v. Eisenbaum, 764 P.2d 1202 (Colo.1988); Garrison v. Medical Ctr. of Del.
examined Cited "see" Siemieniec v. Lutheran General Hospital (4×) also: Cited "see, e.g."
Ill. · 1987 · signal: see · confidence high
See Elliott v. Brown (Ala. 1978), 361 So. 2d 546, 547-48 ; Blake v. Cruz (1985), 108 Idaho 253, 260 , 698 P.2d 315, 322 ; Bruggeman v. Schimke (Kan. 1986), 718 P.2d 635, 640-42 ; Smith v. Cote (1986), 128 N.H. 231, 248 , 513 A.2d 341, 352 ; Becker v. Schwartz (1978), 46 N.Y.2d 401, 411 , 386 N.E.2d 807, 812 ; Azzolino v. Dingfelder (1985), 315 N.C. 103, 110 , 337 S.E.2d 528, 533 ; Ellis v. Sherman (1986), 512 Pa. 14, 19 , 515 A.2d 1327, 1329 .
discussed Cited "see" Nelson v. Krusen (2×)
Tex. · 1984 · signal: see · confidence high
See Elliott v. Brown, 361 So.2d 546 (Ala.1978); Moores v. Lucas, 405 So.2d 1022 (Fla.Dist.Ct.App.1981); Strohmaier v. Associates in Obstetrics & Gynecology, 122 Mich.App. 116 , 332 N.W.2d 432 (1982); Becker v. Schwartz, 46 N.Y.2d 401 , 413 N.Y.S.2d 895 , 386 N.E.2d 807 (1978); Speck v. Finegold, 268 Pa.Super. 342 , 408 A.2d 496 (1979), aff'd by an equally divided court, 497 Pa. 77 , 439 A.2d 110 (1981); Dumer v. St.
examined Cited "see" Boone v. Mullendore (4×)
Ala. · 1982 · signal: see · confidence high
See, Elliot v. Brown, 361 So.2d 546 (Ala.1978), wherein this Court refused to recognize a cause of action for "wrongful life." This case is, instead, more suited to a traditional medical malpractice, negligence action.
cited Cited "see, e.g." Kassama v. Magat
Md. · 2002 · signal: see also · confidence low
Id.; see also Elliott v. Brown, 361 So.2d 546 (Ala.1978).
discussed Cited "see, e.g." Viccaro v. Milunsky (2×)
Mass. · 1990 · signal: see, e.g. · confidence medium
See, e.g., Elliott v. Brown, 361 So. 2d 546, 548 (Ala. 1978); Lininger v. Eisenbaum, 764 P.2d 1202, 1209-1210 (Colo. 1988); Blake v. Cruz, 108 Idaho 253, 259-260 (1984); Siemieniec v. Lutheran Gen.
discussed Cited "see, e.g." Miller v. Johnson (2×)
Va. · 1986 · signal: see, e.g. · confidence medium
See, e.g., Elliott v. Brown, 361 So. 2d 546, 548 (Ala. 1978); Blake v. Cruz, 108 Idaho 253, 259-60 , 698 P.2d 315, 322 (1984); Becker v. Schwartz, 46 N.Y.2d 401, 412 , 386 N.E.2d 807, 812 , 413 N.Y.S.2d 895, 900 (1978); Azzolino v. Dingfelder, 315 N.C. 103, 109 , 337 S.E.2d 528, 533 (1985); Nelson v. Krusen, 678 S.W.2d 918, 925 (Tex. 1984); Dumer v. St.
discussed Cited "see, e.g." James G. v. Caserta
W. Va. · 1985 · signal: see, e.g. · confidence low
See, e.g., Elliott v. Brown, 361 So.2d 546 (Ala. 1978); Moores v. Lucas, 405 So.2d 1022 (Fla.Dist.Ct.App.1981); Blake v. Cruz, supra; Eisbrenner v. Stanley, 106 Mich.App. 357 , 308 N.W.2d 209 (1981); Miller v. Duhart, supra; Speck v. Finegold, 497 Pa. 77 , 439 A.2d 110 (1981) (evenly divided court affirming); Nelson v. Krusen, 678 S.W.2d 918 (Tex.1984); Dumer v. St.
cited Cited "see, e.g." Robert Robak and Anna Robak, Cross-Appellants v. United States of America, Cross-Appellee
7th Cir. · 1981 · signal: see, e.g. · confidence low
See, e. g., Elliott v. Brown, Ala., 361 So.2d 546 (1978); Becker v. Schwartz, 46 N.Y.2d 401 , 413 N.Y.S.2d 895 , 386 N.E.2d 807 (1978); Dumer v. St.
discussed Cited "see, e.g." Schroeder v. Perkel (2×)
N.J. · 1981 · signal: see, e.g. · confidence low
See, e. g., Elliott v. Brown, 361 So.2d 546 (Ala.S.Ct.1978); Becker v. Schwartz, 46 N.Y.2d 401 , 413 N.Y.S.2d 895 , 386 N.E.2d 807 (1978) ; Speck v. Finegold, 268 Pa.Super. 342 , 408 A.2d 496 (1979) ; Comment, 63 Marq.L.Rev. 611 (1980); Cohen and LaCava “Actions for Unwanted Births” For the Defense, Vol. 23, No. 5 (May 1981).
Retrieving the full opinion text from the archive…
Rachael Nicole Elliott, a Minor Who Sues by Her Father and Next Friend, Therman Elliott
v.
Harry G. Brown, M.D.
77-114.
Supreme Court of Alabama.
Aug 18, 1978.
361 So. 2d 546
Roger H. Bedford of Bedford Bedford, Russellville, for appellant. Robert O. Cox of Poellnitz, Cox, Robison, McBurney Jones, Florence, for appellee. Page 547
Almon.
Cited by 52 opinions  |  Published

Rachael Nicole Elliott, by her father and next friend, brought an action against Harry G. Brown, M.D., for breach of contract and for negligence in improperly performing a vasectomy on her father, resulting in plaintiff's conception and "wrongful life." The plaintiff was born with serious deformities. This appeal is taken from a judgment of the trial court granting the defendant's motion to dismiss for failure to state a cause of action upon which relief can be granted. We affirm.

Defendant-physician, Harry G. Brown, performed a surgical procedure on Therman Elliott, plaintiff's father, known as a vasectomy. According to the complaint, Therman Elliott underwent the sterilization to prevent his wife from becoming pregnant, a condition which would endanger her health. With knowledge of the plaintiff's mother's condition, defendant allegedly guaranteed the effectiveness of the operation. The defendant conducted post-operative examinations of Therman Elliott's semen specimens and allegedly informed him that the operation was a complete success. Relying on the defendant's assurances, Therman Elliott and his wife resumed marital relations which resulted in the plaintiff's conception.

The present action was consolidated for trial with suits filed by the plaintiff's parents against the defendant. Only the plaintiff's suit was dismissed. The suits by Therman Elliott and his wife are in no way involved with this appeal.

Plaintiff does not claim that the defendant's alleged preconception negligence caused her deformity. See Renslow v.Mennonite Hospital, 67 Ill.2d 348, 10 Ill.Dec. 484,367 N.E.2d 1250 (1977); Jorgensen v. Meade Johnson Laboratories,483 F.2d 237 (10th Cir., 1973). In fact, plaintiff does not contend that defendant knew or should have known that, if born, she would have a deformity. The complaint noticeably lacks allegations that the sterilization was to benefit the plaintiff by protecting the health of any future born children. Rather, reduced to its essence, the plaintiff's claim is that the defendant's alleged negligence caused her birth; i.e., "wrongful life."

". . . What the infant — Appellant alleges is that the breach of duty led proximately to her birth — the maturing of the harm — . . ." Appellant's brief, p. 9.

"Wrongful life is essentially an action for damages based on the defendant's negligence in wrongfully allowing a particular child to be born." Note, An Action for Wrongful Life Brought onBehalf of the Wrongfully Conceived Infant, 13 Wake Forest L.Rev. 712, 716 (1977). Plaintiff urges this court to recognize for the first time a cause of action on her behalf for "wrongful life."

Several courts have addressed this issue and the vast majority have declined to recognize a cause of action for "wrongful life" on behalf of the child. Stills v. Gratton,55 Cal.App.3d 698, 127 Cal.Rptr. 652 (1976); Gleitman v. Cosgrove,49 N.J. 22, 227 A.2d 689 (1967); Stewart v. Long Island CollegeHospital, 30 N.Y.2d 695, 332 N.Y.S.2d 640, 283 N.E.2d 616 (1972); Karlsons v. Guerinot, 57 A.D.2d 73, 394 N.Y.S.2d 933 (1977); Dumer v. St. Michael's Hospital, 69 Wis.2d 766,233 N.W.2d 372 (1975). The only court to uphold a cause of action for "wrongful life" on behalf of the child is an intermediate appeals court in New York in the recent decision of Park v.Chessin, 60 A.D.2d 80, 400 N.Y.S.2d 110 (1977).

Most of the cases declining to recognize a cause of action for "wrongful life" have done so on the theory that it is impossible to calculate damages. In Gleitman v. Cosgrove,supra, the majority opinion stated the following:

". . . Damages are measured by comparing the condition plaintiff would have been in, had the defendants not been negligent, with plaintiff's impaired condition as a result of the negligence. The infant plaintiff would have us measure the difference between his life with defects against the utter void of nonexistence, but it is impossible to make such a determination. This Court cannot weigh the value of life with impairments against the nonexistence of life itself. *Page 548 By asserting that he should have not been born, the infant plaintiff makes it logically impossible for a court to measure his alleged damages because of the impossibility of making the comparison required by compensatory remedies. As a recent commentator put the matter:

"`[N]o comparison is possible since were it not for the act of birth the infant would not exist. By his cause of action, the plaintiff cuts from under himself the ground upon which he needs to rely in order to prove his damage.' Tedeschi, `On Tort Liability for "Wrongful Life,"' 1 Isreal L.Rev. 513, 529 (1966)." 227 A.2d at 692.

We agree with the above quoted portion of the Gleitman opinion and feel that it adequately states the reasoning of this court with these additional comments. Fundamental to the recognition of such a cause of action is the notion that the defendant has violated some legal right of plaintiff's and as a result she has suffered injury. However, a legal right not to be born is alien to the public policy of this State to protect and preserve human life. The right of women in certain cases to have abortions does not alter the policy. Instead, in light of this right the recognition of such a cause of action raises more questions than it answers. In the words of one jurist:

". . . Implicit, beyond this claim against a physician for faulty advice, is the proposition that a pregnant woman who, duly informed, does not seek an abortion, and all who urge her to see the pregnancy through, are guilty of wrongful injury to the fetus, and indeed that every day in which the infant is sustained after birth is a day of wrong. To recognize a right not to be born is to enter an area in which no one could find his way." Gleitman v. Cosgrove, 227 A.2d at 711 (Weintraub, C.J., dissenting in part).

We hold that there is no legal right not to be born and the plaintiff has no cause of action for "wrongful life."

Furthermore, in Park v. Chessin, supra, the only case to recognize a cause of action on behalf of the infant for "wrongful life," the court apparently recognized the novel "right of a child to be born as a whole, functional human being." Additionally, in that case there was a causal connection between the alleged negligence and the deformity. Here no such connection exists. In that case, the majority opinion stated the following:

". . . decisional law must keep pace with expanding technological, economic and social change. Inherent in the abolition of the statutory ban on abortion . . . is a public policy consideration which gives potential parents the right . . . not to have a child. This right extends to instances in which it can be determined with reasonable medical certainty that the child would be born deformed. The breach of this right may also be said to be tortious to the fundamental right of a child to be born as a whole, functional human being."

We are not unaware of the rapid progress made in medical science in recent years. Many mysteries of the how and why of human development have succumbed to medical knowledge. However, we do not understand that the state of the art in the medical profession is such that it can be said that no child need be born deformed. With deference to the court in Park v. Chessin,supra, we do not feel that it is possible to say that technological, social and economic changes merit the recognition of a cause of action on behalf of the plaintiff for "wrongful life."

Upon what legal foundation is the court to determine that it is better not to have been born than to be born with deformities? If the court permitted this type cause of action, then what criteria would be used to determine the degree of deformity necessary to state a claim for relief. We decline to pronounce judgment in the imponderable area of nonexistence.

This decision should not be construed as any precedent whatsoever where preconception negligence causes deformity, and where absent the negligence, normal birth would have probably occurred. *Page 549

The judgment of the trial court is hereby affirmed.

AFFIRMED.

TORBERT, C.J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.