“Abortion Restrictions” and “Wrongful Birth” Claims in Maryland
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Different kinds of birth-related claims
“Wrongful birth” is a label for a parent’s claim that medical negligence deprived the patient of material information or a timely reproductive choice, such as after a prenatal screening or diagnostic failure. It is different from a child’s “wrongful life” claim and from a “wrongful pregnancy” or “wrongful conception” claim based on negligent sterilization or contraception. The legal distinctions matter because the claimant, alleged injury, proof, and damages differ.
Maryland’s reproductive-freedom framework
Maryland’s current framework includes Article 48 of the Declaration of Rights, which protects each person’s fundamental right to reproductive freedom, including the ability to make and effectuate decisions to prevent, continue, or end one’s own pregnancy. The State may not deny, burden, or abridge that right unless it meets the constitutional standard stated in Article 48. Health–General § 20-209 also provides that the State may not interfere with a decision to terminate before fetal viability, or at any time when the procedure is necessary to protect the pregnant patient’s life or health or the fetus is affected by a genetic defect or serious deformity or abnormality. The statute separately addresses a qualified provider’s decision to perform an abortion in good faith and in accordance with accepted clinical standards.
How restrictions can affect a claim
Maryland appellate cases distinguish a claim brought by parents from a claim brought on behalf of a child. One decision addressed parents’ allegations that prenatal-care providers failed to disclose an available screening test and thereby deprived them of an informed opportunity to consider further testing and termination. A later decision rejected the child’s “wrongful life” theory: Maryland does not treat the child’s existence, standing alone, as a legally cognizable injury caused by the provider. A separate decision concerns negligent sterilization resulting in the birth of a healthy child and the different damages rules for that claim.
Cross-border restrictions, causation, and governing law
Restrictions in another state can affect the factual and legal analysis if they change whether, when, or where a patient could obtain care, whether a provider could lawfully refer or provide information, and whether an allegedly negligent delay actually foreclosed a choice. They do not by themselves prove malpractice or create a claim. A claimant still must establish the applicable professional standard, a breach, causation, and legally recoverable damages. The court may also need to decide which state’s law governs, including whether that state recognizes the particular claim or limits recovery by statute. These questions are highly dependent on the location and timing of care, the information given, the available tests and procedures, and the patient’s own evidence about the decision the patient would have made.
Damages depend on the claim and the proof
“Wrongful birth” damages are not automatic and should not be confused with damages for an injury that caused a child’s disability. The parents’ claim focuses on legally cognizable losses caused by the alleged loss of an informed choice; a child’s claim that life itself is an injury is a separate theory that Kassama rejected. Maryland’s rules for negligent sterilization claims also should not be assumed to control a prenatal-diagnosis claim. The type and measure of damages depend on the specific theory, proof, and controlling law.
Related Maryland Cases and Authorities
Md. Declaration of Rights art. 48; Md. Code, Health–General § 20-209; Reed v. Campagnolo, 332 Md. 226, 228 (1993); Kassama v. Magat, 368 Md. 113, 137–38 (2002); Jones v. Malinowski, 299 Md. 257, 270 (1984).