On April 30, 2021, the Kansas Supreme court handed down a decision upholding a ban against wrongful birth lawsuits aimed at practitioners. The decision affirms lower courts’ verdicts against a couple who sought damages upon learning of their baby’s serious brain abnormalities after the eligibility window to terminate the pregnancy.

Tillman and Fleetwood v. Goodpasture

In 2014, Alysia R. Tillman and Storm Fleetwood were expecting a baby girl. Katherina A. Goodpasture, D.O. provided Tillman’s prenatal care beginning in November 2013. During a routine ultrasound in January 2014, Goodpasture told Tillman the fetus had normal anatomy. But during a scan just weeks before the birth, Tillman learned the fetus had structural deformities and brain defects. Their daughter was born with severe and permanent impairments. She will require lifetime care.

Tillman and Fleetwood believed the earlier scan showed these deformities, but Goodpasture chose not to inform them. This, they claim, deprived them of the right to make an informed decision about whether to carry out the pregnancy. They sued Goodpasture for breaching her duty of care during the January 2014 ultrasound. The plaintiffs alleged they would have chosen to terminate the pregnancy had Goodpasture fully informed them of the fetus’s condition. They asked to recover the costs of caring for a child with severe, permanent disabilities.

The Wrongful Birth Ban

The defendant moved for judgment claiming this was a wrongful birth lawsuit. She asserted that  K.S.A. 2020 Supp. 60-1906(a) prohibited the plaintiffs’ argument and request for damages. This statute, passed in 2013 by the Kansas legislature, bans claims based on wrongful birth. The plaintiffs countered, arguing the statute violated Sections 5 and 18 of the Kansas Bill of Rights.

The court ruled in the defendant’s favor. Tillman and Fleetwood appealed, but the Court of Appeals agreed with the district court’s decision. Next, the parents sought review by the Kansas Supreme Court.

Appeal to the KS Supreme Court

The Kansas Supreme Court determined the initial question was the categorization of a wrongful birth action. The court looked at whether it’s a new cause of action as affirmed in Arche v. United States or an extension of a common law negligence action.

The plaintiffs argued their claim is a traditional tort under the common law that existed when Kansas adopted its Constitution. The court disagreed, concluding the Arche court created a new cause of action by adding “non-traditional elements” to a negligence claim. Holding that parents could only bring a wrongful birth claim if the child were severely and permanently handicapped created “unique limiting circumstances.”

Kansas Bills of Rights: Section 5

The court next looked at whether the statute violated Section 5. This section asserts, “The right of trial by jury shall be inviolate.” Though, the right to a jury trial in Kansas is not all-encompassing. The court previously decided Section 5 applies to causes of actions as recognized in 1859 only. Because a wrongful birth action wasn’t available in 1859, the parents weren’t entitled to a jury trial. The statute prohibiting such cases doesn’t violate Section 5.

Kansas Bill of Rights: Section 18

Next, the court reviewed whether the statute violated Section 18. This section explains, “All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.” Here, the court examined whether Section 18 limits the Kansas legislature’s right to prohibit a cause of action the court legally recognized in Arche. The legislature can modify common law actions as long as it provides an adequate substitute remedy for the right it limited or abolished.

The court found Section 18 protects common law causes of actions but not those recognized after the state adopted its Constitution. The legislature was free to prohibit wrongful birth actions despite the court’s recognition of such cases in Arche.

Three Justices Reach Other Conclusions

Chief Justice Luckert dissented on this verdict. She reasoned that the law would be unconstitutional under the test used to determine if a statute violates Section 5. Chief Justice Luckert disagreed that a wrongful birth action was any different from a typical medical malpractice claim. She also discussed that the allowed damages, which the court used to reason Arche created a new action, weren’t relevant. She wrote, “Causes of actions are not defined by damages.”

Justice Rosen also dissented. He believed the appropriate question was whether the parents suffered an injury and not what the common law considered actionable in 1859. “To offer constitutional protection to only those causes of action recognized in 1859 is to ossify tort law in an ever-aging time.” He also believed a court in 1859 would’ve recognized this situation as a basis for a lawsuit.

Justice Caleb Stegall dissented on different grounds. He also believed a wrongful birth action is not a new action, but he’d overturn Arche. He cited it as one of the worst decisions in the court’s history, believing it created “reprehensible discrimination in Kansas law.”

A Troubling Conclusion for Some

A ban on wrongful birth lawsuits raises a few concerns. Kansas law makes it challenging, if not impossible, to hold a medical provider responsible for failing to provide patients with complete information regarding a fetus. Practitioners who oppose abortion may choose not to provide parents with information or to mislead patients to prevent a potential termination. This is likely not the last challenge to the related Kansas laws.

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