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A couple whose in-vitro child was born with cystic fibrosis can seek punitive damages against a fertility treatment center and a hospital for allegedly reckless conduct, a Manhattan judge has ruled. The ruling by Supreme Court Justice Eileen C. Bransten, which was issued Tuesday, is one of the first to apply New York’s body of medical case law to the ethical and legal questions raised by in-vitro fertilization. While the plaintiffs may press most of the claims in their lawsuit, Bransten barred claims by the child for “wrongful life” and by the parents for emotional distress related to the birth. The plaintiffs, Josephine and Gerard Paretta, allege that their doctors knew the couple’s chosen egg donor was a carrier of cystic fibrosis, yet failed to tell them. The Parettas were particular about choosing an egg donor, even expressing concern about the size of the donor’s ears and eyes, and whether she had freckles. But the Parettas were never told about the possibility of cystic fibrosis, and they also claim that their doctors, armed with this knowledge, failed to test Mr. Paretta to see if he was a carrier of the disease. He also turned out to be a carrier. Mrs. Paretta gave birth to Theresa in May 2000. The baby was in intensive care for two months, underwent several operations and will need care and medication for the rest of her life. In their suit against their doctors, the Medical Office for Human Reproduction, and Columbia-Presbyterian Medical Center, the Parettas, including Theresa, allege medical malpractice, negligence, and reckless conduct. The complaint seeks medical damages, lost wages (Mrs. Paretta has given up her job to care for her daughter) and punitive damages. But Justice Bransten said that under the New York Court of Appeals’ 1978 ruling in Becker v. Schwartz, 46 N.Y.2d 401, Theresa could not maintain an action for “wrongful life.” In Becker, a baby with Down syndrome was born to a mother over age 35. The parents sued and named their baby as a plaintiff, alleging that the doctors failed to warn them about an increased risk of the disease for women over 35, and for failing to test for it pre-birth. Reasoning that children did not have a fundamental right to be born free of disease, the court ruled in Becker that the couple’s child could not sue. Although Theresa’s birth — through in-vitro fertilization — was essentially created by medical doctors, rather than allegedly mishandled, as in Becker, Justice Bransten said the court’s ruling in Becker still applied. “A conclusion to the contrary, permitting infants to recover against doctors for wrongs allegedly committed during in-vitro fertilization, would give children conceived with the help of modern medical technology more rights and expectations than children conceived without medical assistance,” Bransten wrote in Paretta v. Medical Offices for Human Reproduction, 122555/00. Bransten also barred the plaintiffs from seeking damages for emotional distress related to Theresa’s birth. She again cited Becker, where the Court of Appeals rejected such claims, saying, “Notwithstanding the birth of a child afflicted with an abnormality, and certainly depending on the nature of the affliction, parents may yet experience a love that even an abnormality cannot fully dampen.” But the Parettas can seek compensation for the expenses they now face in caring for their daughter, as well as punitive damages. “It is certainly possible that defendants’ conduct was at the very least grossly negligent — possibly even fraudulent — and that defendants could have prevented the Parettas from having a baby with cystic fibrosis,” Justice Bransten wrote. “There is evidence that defendants may have known that the egg donor was a cystic fibrosis carrier; yet, they failed to inform the Parettas or test Mr. Paretta’s sperm to assess whether he too was a carrier.” The judge added that she would not “rule out completely” Mrs. Paretta’s claim for lost wages, since she left her job to care for her daughter. Rudolph Silas appeared for the Parettas. Juliann L. Safko of Wilson, Elser, Moskowitz, Edelman & Dicker appeared for the Center for Human Reproduction.

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