The state Superior Court has struck down a Pennsylvania statute banning wrongful birth and wrongful life actions on the grounds that the law was enacted unconstitutionally.
A three-judge panel unanimously overturned a ruling by Montgomery County Court of Common Pleas Judge Emanuel A. Bertin that tossed out a suit filed by the parents of a now 4-year-old boy afflicted with familial dysautonomia, or F.D., who claimed health care workers failed to inform them prior to the child’s birth that he was at a heightened risk for the genetic disorder and thus robbed them of the opportunity to consider terminating the pregnancy.
According to Judge Christine Donohue, who wrote the majority opinion in Sernovitz v. Dershaw, Bertin had granted the preliminary objections of defendant doctors Stuart Z. Dershaw, John Stack and Laura Borthwick-Scelzi; certified nurse practitioner Margaret M. Fillinger; Women’s Care of Montgomery County; Holy Redeemer Hospital and Medical Center; and Holy Redeemer Health System Inc. on the grounds that 42 Pa.C.S.A. Section 8305 — an amendment of S 646, which was signed into law as Act 47 of 1988 — bans wrongful birth and wrongful life actions.
But Donohue said the enactment of Section 8305 violated the “single-subject rule” contained in Article III, Section 3 of the Pennsylvania Constitution, since Act 47 was intended to address post-trial matters in criminal cases.
“Most of the amendments contained in S 646 are germane to that primary purpose,” Donohue said. “Four amendments — Section 1125 (regarding the appointment of substitute bail commissioners in Philadelphia), Section 8305 (prohibiting a cause of action for wrongful birth and wrongful life), Section 8306 (limiting the defenses available for injuries sustained in utero), and Section 8933 (regarding the dismissal of felony criminal actions at the preliminary hearing level) — are not germane to that primary purpose, and thus are unconstitutional under the single-subject rule of Article III, Section 3 of the Pennsylvania Constitution.”
The court, however, allowed the remaining provisions of Act 47 to stand.
Donohue was joined by Judges Stephen J. McEwen Jr. and Kate Ford Elliott, the latter of whom penned a concurring opinion, noting that wrongful life actions have never been permitted in Pennsylvania.
Ford Elliott cited the Superior Court’s 1984 ruling in Ellis v. Sherman, which was affirmed by the state Supreme Court two years later and which found that wrongful life claims are not cognizable. McEwen joined Ford Elliott’s concurring statement.
In Sernovitz, according to Donohue, plaintiffs Rebecca and Lawrence Sernovitz sought care from the defendants in December 2007 or January 2008 after Rebecca Sernovitz became pregnant.
Because their Ashkenazi Jewish heritage put their child at heightened risk for certain genetic disorders, according to Donohue, Rebecca Sernovitz underwent blood tests in February 2008 at the recommendation of Stack to determine whether she carried certain gene mutations.
The plaintiffs alleged that the defendants failed to inform them that the test results revealed that Rebecca Sernovitz carried the gene mutation that causes F.D., a disorder that affects nerve development and function, Donohue said.
The Sernovitzes’ son, Samuel Sernovitz, was born in September 2008, and in December 2008, they were informed that he might have F.D., which could only be possible if both parents carried the gene mutation that causes the disorder, according to Donohue.
Rebecca Sernovitz then contacted the defendants and learned for the first time that she had been previously misinformed about her blood test results, Donohue said.
The Sernovitzes filed suit in August 2010, alleging that had they known Rebecca Sernovitz was a carrier of the F.D.-causing gene mutation, they would have had Lawrence Sernovitz tested, after which they could have sought further testing to determine whether Samuel Sernovitz would be born with F.D., according to Donohue.
At that point, the Sernovitzes alleged, they could have made a decision regarding whether to terminate the pregnancy, Donohue said.
According to Donohue, while the plaintiffs acknowledged that wrongful life and wrongful birth claims were prohibited by state law, they argued that Section 8305 violated the single-subject rule.
Donohue agreed, saying Section 8305 — along with Sections 1125, 8306 and 8933 — was “not germane” to the overall objective of the bill it was enacted as part of.
Counsel for the plaintiffs, Theodore J. Caldwell Jr. of Young Ricchiuti Caldwell & Heller in Philadelphia, said he and his clients were “very pleased” with the ruling.
“Obviously, we agree with it,” he said.
Counsel for the defendants, Donald N. Camhi of Post & Schell in Philadelphia, could not be reached for comment late Wednesday.
(Copies of the 29-page opinion in Sernovitz v. Dershaw, PICS No. 12-2190, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •