In 1988, the Pennsylvania legislature passed and then-Governor Robert P. Casey signed into law what is now codified as 42 Pa.C.S. Section 8305. Section 8305, in relevant part, sets forth that:

“(a) Wrongful birth. There shall be no cause of action or award of damages on behalf of any person based on a claim that, but for an act or omission of the defendant, a person once conceived would not or should not have been born.

(b) Wrongful life. There shall be no cause of action on behalf of any person based on a claim of that person that, but for an act or omission of the defendant, the person would not have been conceived or, once conceived, would or should have been aborted.

(c) Conception. A person shall be deemed to be conceived at the moment of fertilization.”

Prior to the enactment of the ban on such actions, the Pennsylvania Supreme Court had, as had a number of other state high courts, recognized a claim for wrongful birth, but had declined to recognize a claim for wrongful life. As recognized by the court, a wrongful birth cause of action is a negligence claim brought against health care providers by the parents of a child born with a disability to recover for the extraordinary costs of caring for such a child. The health care providers are typically those involved with the prenatal care of the mother. A wrongful life cause of action is also a medical negligence claim. It is brought on behalf of a child who is born with some deformity or disability allegedly due to a health care providers’ negligent failure to detect the condition in utero on the argument that not being born would be preferable to living with the deformity or disability. Both claims are premised on a woman’s right to an elective abortion as set forth in the U.S. Supreme Court’s decision in Roe v. Wade. Interestingly, Section 8305(b), the ban on wrongful life claims, was enacted even though Pennsylvania appellate courts had rejected such claims.

Pennsylvania Law after the Enactment of Section 8305

Although the ban enacted by Section 8305 was subsequently upheld from substantive constitutional challenges, the appellate courts of Pennsylvania held that the statute did not bar medical malpractice claims by women for wrongful contraception or negligence in the performance of a sterilization procedure. In Butler v. Rolling Hill Hospital, 582 A.2d 1384 (Pa. Super. 1990), the Superior Court permitted a claim for a negligently performed contraceptive procedure; and in Hatter v. Landsberg, 563 A.2d 146 (Pa. Super. 1989), the same court again allowed a claim for “wrongful contraception resulting from negligently performed sterilization.” However, in both those cases, the Superior Court, mindful of Section 8305, held the plaintiff may only recover the medical expenses and lost wages related to prenatal care, delivery and post-natal care, as well as pain and suffering incurred during the prenatal through post-natal periods. Even in light of the decisions in Butler and Hatter, the practical effect of the statutory ban on wrongful birth and wrongful life claims was that very few, if any, actions alleging negligent medical care resulting in an unwanted pregnancy and birth were filed. Even prior to the enactment of Section 8305, Pennsylvania law did not permit the parents to recover the costs of raising a child born without disabilities that were allegedly due to the negligence of a health care provider.

The Sernovitz Case

Despite Pennsylvania appellate courts upholding the constitutionality of Section 8305′s ban on wrongful birth and wrongful life claims, counsel for Rebecca and Lawrence Sernovitz filed a complaint in Sernovitz v. Dershaw, asserting claims of wrongful birth on their behalf and wrongful life on their son’s behalf. Shortly after the Sernovitzes’ son was born, he was diagnosed with familial dysautonomia (FD). FD, or Riley-Day syndrome, is an inherited disorder that affects the development and formation of nerves throughout the body. Persons afflicted with FD suffer many serious health problems and have a reduced life expectancy. Recognizing Section 8305 prohibited such claims, the Sernovitzes’ lawyers asserted in the complaint that Section 8305 was inter alia unconstitutionally enacted in violation of Article III, Section 3 (single-subject rule) of the Pennsylvania Constitution. The Sernovitzes’ complaint set forth that they are of Ashkenazi Jewish heritage and this puts their child at an increased risk of being afflicted with certain genetic mutations. Soon after Rebecca Sernovitz became pregnant, she underwent blood tests that revealed she was a carrier of the gene mutation that caused FD, but it was alleged that the defendant doctors did not inform her of these results. Rather, she was told that the tests were negative.

Two months after their son was born, Rebecca and Lawrence Sernovitz were informed that he might have FD, a possibility that could only be the result of both parents carrying the FD-causing gene mutation. In their complaint, the plaintiffs alleged that had they been informed of Rebecca Sernovitz’s positive tests results, Lawrence Sernovitz would have been tested as well, and this would have revealed the fact that he was a carrier. This would have prompted further testing and given them the opportunity to determine whether to terminate the pregnancy. The plaintiffs further alleged that “had they been appropriately informed, Rebecca would have undergone an abortion rather than bringing a child into this world who would be destined to suffer from FD and to endure a lifetime of extreme and debilitating suffering, and ultimately, a premature death.” The defendants filed preliminary objections asserting that Section 8305 precluded the plaintiffs’ claims for wrongful birth and wrongful life. The trial court granted the preliminary objections and dismissed the complaint finding that Section 8305 bars the plaintiffs’ claims, and it was constitutionally enacted. The Sernovitzes appealed to the Superior Court.

The Superior Court Decision

The Superior Court panel reversed the trial court’s grant of the defendants’ preliminary objections and reinstated the amended complaint. In a well-written opinion, Judge Christine Donohue, for a unanimous panel, found that the enactment of 42 Pa.C.S. §8305 violated the single-subject rule contained in Article III, Section 3 of the Pennsylvania Constitution. The single-subject rule states, “No bill shall be passed containing more than one subject, which shall be clearly expressed in its title, except a general appropriation bill or a bill codifying or compiling the law or part thereof.” The court reviewed the history of this constitutional provision, indicating its purpose was to place “restraints on the legislative process and encourage an open, deliberative and accountable government.” The court went on to note that the provision was designed in part to prevent the attachment of unpopular riders, which would not become laws on their own, to popular bills that are sure to pass, commonly referred to as “logrolling.” The decision went on to find that “the single unifying subject” of the 1988 bill was post-trial matters in criminal cases and that four sections of the bill were not germane to that subject. The court further held the four “not germane” sections to be unconstitutional while allowing the remaining sections to stand. One of the sections struck down as unconstitutional was Section 8305. However, it is important to note that two of the three panel members filed a concurring statement setting forth that Pennsylvania law does not recognize a claim for wrongful life.

The court’s opinion relied in large part on a recent Superior Court decision in Commonwealth v. Neiman, 5 A.3d 353 (Pa. Super. 2010) (en banc). In Neiman, an en banc Superior Court held that another statute was unconstitutionally enacted in contravention of the single-subject rule set forth in Article III of the Pennsylvania Constitution. Donohue did indicate in her opinion that the Supreme Court was in the process of reviewing the Neiman case. Further, in Footnote 11, the judge chided the trial court for its failure to acknowledge the Superior Court’s decision in Neiman when it wrote its opinion in support of its dismissal of the complaint on preliminary objections: “Although the Supreme Court granted allowance of appeal of Neiman on August 10, 2011, our en banc decision in that case remains binding precedent unless and until it is overturned by our Supreme Court.”

After Sernovitz

It is likely that the defendants in Sernovitz will seek review by the Supreme Court. Whether the invalidation of Section 8305′s ban on wrongful birth cases will be affirmed by the Supreme Court will, in large part, depend on that court’s decision in the Neiman case. That case has already been argued before the court in September. Moreover, there is also the possibility that the legislature will take up the issue and re-enact Section 8305. However, for now, Pennsylvania law must be considered as permitting wrongful birth cases where the parents seek to recover for their emotional distress and for the extraordinary costs associated with caring for a severely disabled child.

Stephen J. Pokiniewski Jr. is a partner at Anapol Schwartz. His practice focuses primarily on plaintiffs personal injury litigation with special emphasis on medical negligence claims. He has lectured on topics in medical malpractice and authored several articles related to handling of medical negligence cases.