Can a person sue his parents over congenital defects?

Opening message from the rabbi

Can a person sue his parents over congenital defects?

Posted on 5/12/2005

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Can a person sue his parents over congenital defects?

I do not remember whether there is an explicit rule against opening two threads in the same week, so let the moderators forgive me (though from local practice I see that people are not strict about this). And if there is a problem, permission to delete is of course granted.

A former student came to me today, now a university student, and told me about a lecture he heard in which the following (fictional) case was discussed:

A couple came to a doctor for consultation as to whether they could bring a child into the world. The doctor, who knew of the possibility that a child born to these two parents would have defects, did not inform them of this and even encouraged them to proceed.

In due course, a child was born, and severe defects were discovered in him, greatly burdening his life. He sued the doctor for negligence.

So tell me: what should our ruling be in this case?

The claim made in the lecture was that there is no basis for such a suit. As I understand that claim, one can distinguish here between two aspects, from either of which the doctor is not liable:

1. The ontological aspect. Had the doctor informed the parents about the likely harm, they would not have brought the child into the world at all. If so, the doctor did not cause him harm, because were it not for the doctor’s advice he would not have existed at all. The very ability of the plaintiff to sue the doctor stems from that same negligent medical advice that caused the plaintiff to come into being.

Admittedly, beyond the normative claim as such, there is room to discuss this, since the ones who caused the child’s coming into being are the parents, not the doctor. He is only an indirect cause (and additionally, the parents could have chosen not to heed him—somewhat akin to the rule that "there is no agency for a transgression"). Therefore it is worth sketching a different case, in which the parents are aware and nevertheless bring him into our cruel world. Now the child sues his parents, who ignored defects known to them. Does the ontological argument (that they created the plaintiff through their negligent act) remove the burden of responsibility from them?

One can discuss whether parents in general ought not to bring such a child into the world, but that would divert the discussion, and I suggest that we not focus on that but rather assume hypothetically that indeed it is not proper to bring such a child into the world.

2. The valuation aspect. The alternative to the act of that doctor, or of the parents themselves in the alternative case we have proposed, is that this plaintiff would not exist at all. In an ordinary assessment of damages, we compare two alternatives: had the injurious act not been done, the injured party (or his property) would have been healthy and intact. Now that the injurious act has been done, he is defective. The damages assessment is the difference between those states (whether valued as an Israelite indentured servant or as a Canaanite slave, according to the dispute between the Rosh and Rashi at the beginning of the chapter "One Who Injures") that resulted from the tortfeasor’s negligence (setting aside the well-known conceptual analysis of the author of Even HaEzel). But in the present case, the alternative is that there would be no plaintiff in the world at all, not that he would be whole. Therefore there is no basis for comparing the two alternatives, and the damage cannot be assessed.

According to this argument, it follows that there is a prohibition (at least a moral one) but no obligation of compensation.

Incidentally, I have a feeling that the two arguments are connected in some way, and therefore the second argument too bears on the prohibition itself and not only on the obligation to compensate. But I shall leave that for the discussion as it develops below.

Source (the "Stop Here, Think" forum): http://www.bhol.co.il/forums/topic.asp?topic_id=1702830&forum_id=1364