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The tort action for “wrongful birth” has a history dating back at least to the

1960s, when it emerged along with the claims for “wrongful life” and “wrongful

conception.” Since their incipience, this trio of lawsuits has generated an expansive

commentary, reaching into thousands of articles in the legal literature alone. With a

divide among federal circuits on wrongful birth only beginning to gain visibility with

Doherty v. Merck & Co. in 2018 and Zelt v. Xytex Corp. in 2019, the wrongful

birth claim could potentially provide a site for the Supreme Court to revisit national

abortion policy.

The extant literature has also typically been parochial in scope, most often

focusing on a specific bill, law, or court decision in a given state or region. Rather

than seeking to sift through the multifarious voices in the legal, medical, ethical,

sociological, and other literatures opining on these actions for more than half a

century, this Essay offers a brief and broader view, canvassing the state and

federal terrain governing these actions in 2020. More specifically, this Essay calls

into question the dominating role that the wrongful birth claim has come to play,

with recent federal circuit decisions speaking to an urgent need for more concerted

efforts to limit the scope of recovery in order to better reflect the benefits conferred

on parents by unexpected children.



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