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Park v. Chessin: The Continuing Judicial Development of the Theory of ‘Wrongful Life’

Published online by Cambridge University Press:  24 February 2021

Mark E. Cohen
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Abstract

Park v. Chessin, a recent New York case, marked the first step toward judicial acceptance of the theory of “wrongful life.” Wrongful life suits involve a cause of action brought by an infant, against a physician, alleging that the physician's failure to inform the child's parents of the possibility of their bearing a severely defective child was the proximate cause of the infant's birth, and thus resulted in harm to the infant. This Note explores recent legal developments that give precedential support to the development of the theory of wrongful life. Furthermore, it demonstrates that the awarding of monetary damages is an appropriate remedy for the wrongful life plaintiff, and it examines possible methods for measuring those damages. The Note concludes with an analysis of the capability of courts to adjudicate wrongful life suits, and of the possible ramifications of judicial acceptance of the theory of wrongful life.

Type
Notes
Information
American Journal of Law & Medicine , Volume 4 , Issue 2 , Summer 1978 , pp. 209 - 232
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1978

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References

1 E.g., Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967); Park v. Chessin, 88 Misc. 2d 222, 387 N.Y.S.2d 204 (Sup. Ct. 1976), aff'd, 400 N.Y.S.2d 110 (App. Div. 1977); Stewart v. Long Island College Hosp., 30 N.Y.2d 695, 283 N.E.2d 616, 332 N.Y.S.2d 640 (1972).

To date, such suits have been brought on behalf of very young children only. Such a suit, however, could be brought anytime within the applicable statute of limitations period (for example, three years after the child reaches majority).

2 Gleitman v. Cosgrove, 49 N.J. 22, 28, 227 A.2d 689, 692 (1967).

3 See Park v. Chessin, 400 N.Y.S.2d 110, 111 (App. Div. 1977). See notes 110-19 and accompanying text infra.

4 Wrongful birth cases arise in two situations. In one, the parents of severely defective children sue physicians whose allegedly negligent failure to inform them of the possibility of their bearing a severely defective child is claimed to be the proximate cause of the child's birth. Some recent decisions have held that the parents, if they prove their case, can recover for the expenses of pregnancy and for the cost of caring for the child, but not for the emotional distress caused by watching the child suffer. See, e.g., Park v. Chessin, 400 N.Y.S.2d 110 (App. Div. 1977); Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975). Cf. Howard v. Lecher, 53 App. Div. 2d 420, 386 N.Y.S.2d 460 (1976), aff'd, 42 N.Y.2d 109, 366 N.E.2d 64, 397 N.Y.S.2d 363 (1977) (physician found not to be negligent). These cases usually are accompanied by an action brought on behalf of the infant for wrongful life.

In the other type of wrongful birth case, the parents of normally healthy, but unwanted children bring actions against physicians alleged either to have negligently performed sterilization operations or abortions, or to have negligently failed to diagnose a pregnancy until it was too late for the mother to have an abortion performed; or against pharmacists alleged to have negligently misfilled birth control prescriptions. The recent trend is toward allowing such suits if the jury determines that the benefits of having a child are outweighed by its burdens. E.g., Custodio v. Bauer, 251 Cal. App. 2d 303, 59 Cal. Rptr. 463 (1967); Troppi v. Scarf, 31 Mich. App. 240, 187 N.W.2d 511 (1971). See, e.g., Robertson, Civil Liability Arising from “Wrongful Birth” Following an Unsuccessful Sterilization Operation, 4 Am J. L. * Med. 131 (1978)Google Scholar; Comment, Pregnancy After Sterilization: Causes of Action for Parent and Child, 12 J. Fam. L. 635 (1972-73)Google Scholar.

5 Typically, these cases involve suits brought by illegitimate children against their alleged father. The child claims that he has been harmed by being born with the stigma of illegitimacy. E.g., Pinkney v. Pinkney, 198 So.2d 52 (Fla. Dist. Ct. App. 1967); Zepeda v. Zepeda, 41 Ill. App. 2d 240, 190 N.E.2d 849 (1963), cert, denied, 379 U.S. 945 (1964). In a similar case, a child sued the State of New York alleging that she had been born to a state mental institution inmate who had been raped. Williams v. State, 46 Misc. 2d 824, 260 N.Y.S.2d 953 (Ct. Cl. 1965), rev'd, 25 App. Div. 2d 906, 269 N.Y.S.2d 786 (1966), aff'd, 18 N.Y.2d 481, 223 N.E.2d 343, 276 N.Y.S.2d 885 (1966). Except for the decision of the Williams trial court, attempts to establish a cause of action for dissatisfied life uniformly have been rejected. See, e.g., Note, Compensation for the Harmful Effects of Illegitimacy, 66 Colum. L. Rev. 127 (1966)CrossRefGoogle Scholar.

6 See Veazey, Torts—An Action for Wrongful Life Brought on Behalf of the Wrongfully Conceived Infant, 13 Wake Forest L. Rev. 712, 716 n.27 (1977)Google Scholar.

7 Park v. Chessin, 400 N.Y.S.2d 110, 116 (App. Div. 1977) (Titone, J., dissenting).

8 See Kass, * Shaw, The Risk of Birth Defects: Jacobs v. Theimer and Parents’ Right to Know, 2 Am. J. L. * Med. 213 (1976-77)Google Scholar; Shaw, Genetically Defective Children: Emerging Legal Considerations, 3 Am. J. L. * Med. 333 (1977)Google Scholar.

9 Kass * Shaw, supra note 8, at 220.

10 Id.

11 See Goss, Strict Liability: A “Lady in Waiting” for Wrongful Birth Cases, 11 Calif. W. L. Rev. 136, 136 (1974)Google Scholar.

12 But see Park v. Chessin, 88 Misc. 2d 222, 226-28, 387 N.Y.S.2d 204, 207-09 (Sup. Ct. 1976); Veazey, supra note 6, at 714-16, 723-25. See notes 48-77 and accompanying text infra.

13 See Glietman v. Cosgrove, 49 N.J. 22, 28, 227 A.2d 689, 692 (1967).

14 See Gleitman v. Cosgrove, 49 N.J. 22, 30, 227 A.2d 689, 692 (1967); Tedeschi, On Tort Liability for Wrongful Life, 1 Israel L. Rev. 513, 529 (1966)CrossRefGoogle Scholar. See notes 78-101 and accompanying text infra.

15 See notes 102-09 and accompanying text infra.

16 See Gleitman v. Cosgrove, 49 N.J. 22, 28, 227 A.2d 689, 692 (1967). But see Park v. Chessin, 88 Misc. 2d 222, 232, 387 N.Y.S.2d 204, 211 (Sup. Ct. 1976). See notes 118 * 119 and accompanying text infra.

17 See Stills v. Gratton, 55 Cal. App. 2d 698, 705, 127 Cal. Rptr. 652, 656 (1976). See notes 120-23 and accompanying text infra.

18 See Stewart v. Long Island College Hosp., 35 App. Div. 2d 531, 532, 313 N.Y.S.2d 502, 503 (1970). See notes 124-28 and accompanying text infra.

19 See Park v. Chessin, 400 N.Y.S.2d 110, 118 (App. Div. 1977) (Titone J., dissenting). But see Note, A Cause of Action for “Wrongful Life” [A Suggested Analysis], 55 Minn. L. Rev. 58, 75, 76 (1970)Google Scholar. See notes 138-44 and accompanying text infra.

20 See Park v. Chessin, 88 Misc. 2d 222, 231-32, 387 N.Y.S.2d 204, 211 (Sup. Ct. 1976). See notes 145-47 and accompanying text infra.

21 400 N.Y.S.2d 110 (App. Div. 1977).

22 The Park court denied the defendants’ motion to dismiss the plaintiff's cause of action for wrongful life. The Park trial court also had denied the defendants’ motion, but that court based its holding on the theory that the plaintiff should be seeking recovery for pain and suffering, rather than for wrongful life. Park v. Chessin, 88 Misc. 2d 222, 387 N.Y.S.2d 204 (Sup. Ct. 1976). See note 33 infra.

Dicta in two recent New York decisions indicated a willingness to allow a suit for wrongful life if confronted with the proper case. In Johnson v. Yeshiva University, 42 N.Y.2d 818, 364 N.E.2d 1340, 396 N.Y.S.2d 647 (1977), the Court of Appeals stated that the legal issues raised by wrongful life were “interesting” but dismissed the suit because the plaintiffs had not raised any facts that controverted the physician-defendants’ showing that their actions did not depart from “then accepted medical practice.” Id. at 820, 364 N.E.2d at 1341, 396 N.Y.S.2d at 648.

In dismissing a wrongful birth claim for emotional distress, another New York appellate court found no provable damages because “the fact is that the injury from which [the parents’] alleged emotional harm stemmed was suffered by the child.” Howard v. Lecher, 53 App. Div. 2d 420, 423, 386 N.Y.S.2d 460, 461 (1976). In this case, an action for wrongful life was not brought on behalf of the infant.

23 E.g., Note, supra note 19; Note, Torts—Illegitimate Child Denied Recovery Against Father for “Wrongful Life,” 49 Iowa L. Rev. 1005 (1964)Google Scholar.

24 E.g., Park v. Chessin, 400 N.Y.S.2d 110 (App. Div. 1977); Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975). See notes 54-55 * 77, and accompanying text infra.

25 E.g., Bonbrest v. Kotz, 65 F. Supp. 138 (D.D.C. 1946); Kelly v. Gregory, 282 App. Div. 542, 125 N.Y.S.2d 696 (1953). See notes 57-61 and accompanying text infra.

26 E.g., Jorgensen v. Meade Johnson Laboratories, Inc., 483 F.2d 237 (10th Cir. 1973); Renslow v. Mennonite Hosp., 67 Ill. 2d 348, 367 N.E.2d 1250 (1977). See notes 70-76 and accompanying text infra.

27 E.g., Superintendent of Belchertown State School v. Saikewicz, 77 Mass. Adv. Sh. 2461, 370 N.E.2d 417 (1977); In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976). See notes 89-101 and accompanying text infra.

28 Park v. Chessin, 400 N.Y.S.2d 110, 111 (App. Div. 1977). Infantile polycystic kidney disease “is uniformly fatal in infancy.” Perkoff, Renal Diseases, in 1 Genetic Disorders of Man 443 (R., Goodman ed. 1970)Google Scholar. It is caused by two abnormal recessive genes, one contributed by each parent, so that the “substantial probability” can be calculated from Mendel's laws of inheritance to be exactly a 25 percent risk to all future children of any couple that previously has had an affected child. In contrast, the adult form of polycystic kidney disease is clinically and genetically distinct from the condition involved in the Park family. The onset of symptoms occurs later in life, the disease is milder and slowly progressive in its course, and the inheritance follows a Mendelian dominant pattern. In the adult disease, if one parent is affected with polycystic kidneys the risk for any offspring of that parent, regardless of the mate, is one chance in two. See V. Mckusick, Mendelian Inheritance in Man 236-37, 493 (3d ed. 1971).

29 Park v. Chessin, 400 N.Y.S.2d 110, 111 (App. Div. 1977).

30 Id.

31 Id.

32 400 N.Y.S.2d at 112. The plaintiffs did not appeal the trial court's granting of the defendants’ motion to dismiss four of the eight causes of action, including those for fraud and for emotional distress. Id.

The trial court, however, upheld the plaintiffs’ other four causes of action, and the defendants appealed this decision. Although the trial court denied the defendants’ motion to dismiss the cause of action brought by the infant-plaintiff, it based its holding on the theory that “[t]he infant-decedent does not seek damages for being born, per se, but rather seeks damages for the pain suffered by her after her birth based on the tort committed prior to conception.” 88 Misc. 2d 222, 229, 387 N.Y.S.2d 204, 209 (Sup. Ct. 1976) (emphasis in original).

The appellate court (the Second Department of the New York Supreme Court's Appellate Division) held that “Special Term was correct in denying the motion to dismiss these four causes of action.” Park v. Chessin, 400 N.Y.S.2d 110, 112 (App. Div. 1977). The court upheld the parents’ action for wrongful birth, holding that because the parents allegedly had sought out the physician-defendant for his advice and he had given them misinformation, it would be possible for a jury to find that the physician had been negligent. Id. See notes 45-47 and accompanying text infra. The New York Court of Appeals recently granted the defendants leave to appeal the Second Department's decision.

33 Park v. Chessin, 400 N.Y.S.2d 110, 112 (App. Div. 1977)

34 Id. at 114.

35 Id. at 112.

36 Id. at 115 (Cohalan, J., concurring).

37 Id. at 116 (Titone J., dissenting).

38 Id. at 117.

39 Id. at 117-18.

40 Id. at 118.

41 See notes 12-20 and accompanying text supra.

42 One source the court could have used to show the existence of such a right is Smith v. Brennan, 157 A.2d 497 (N.J. 1960), a prenatal injury case. That court stated: “The child has a legal right to begin life with a sound mind and body.” Id. at 503.

43 See W. Prosser, Handbook of the Law of Torts, § 30, at 143 (4th ed. 1971), for an explanation of the four elements of a negligence action.

44 53 App. Div. 2d 420, 386 N.Y.S.2d 460 (1976), aff'd, 42 N.Y.2d 109, 366 N.E.2d 64, 397 N.Y.S.2d 363 (1977).

45 The parents contended that the defendant had an obligation to discover that they were carriers of Tay-Sachs disease and to warn them of the possibility of their bearing a child afflicted with this disease. 53 App. Div. 2d at 422, 386 N.Y.S.2d at 461.

46 See, e.g., Ziemba v. Sternberg, 45 App. Div. 2d 230, 232-33, 357 N.Y.S.2d 265, 268-69 (1968). In order to satisfy the proximate cause requirement, the infant's parents must show that if they had been told that they were likely to bear a severely defective child, they would have either had an abortion performed or taken measures to prevent conception. See notes 9-11 and accompanying text supra.

47 See, e.g., Howard v. Lecher, 53 App. Div. 2d 420, 386 N.Y.S.2d 460 (1976), aff'd, 42 N.Y.2d 109, 366 N.E.2d 64, 397 N.Y.S.2d 363 (1977); Jacobs v. Theimer, 519 S.W.2d 896 (Tex. 1975).

48 Prosser, supra note 43, § 30, at 143.

49 Id. § 53, at 324.

50 See Renslow v. Mennonite Hosp., 67 Ill. 2d 348, 354-55, 367 N.E.2d 1250, 1253 (1977).

51 “‘[D]uty’ is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.” Prosser, supra note 43, § 53, at 325-26.

52 Id. at 327.

53 E.g., Dietrich v. Inhabitants of Northampton, 138 Mass. 14 (1884).

54 Renslow v. Mennonite Hosp., 67 Ill. 2d 348, 354, 367 N.E.2d 1250, 1253 (1977).

55 See, e.g., Park v. Chessin, 400 N.Y.S.2d 110, 113 (App. Div. 1977); Jacobs v. Theimer, 519 S.W.2d 846, 847-48 (Tex. 1975).

56 Renslow v. Mennonite Hosp., 67 Ill. 2d 348, 355, 367 N.E.2d 1250, 1253-54 (1977). Examples cited by the court include the traditional reluctance of the courts to impose a duty to rescue or to allow the recovery of monetary damages for emotional distress caused by witnessing harm suffered by another.

57 65 F. Supp. 138 (D.D.C. 1946).

58 E.g., Dietrich v. Inhabitants of Northhampton, 138 Mass. 14 (1884).

59 E.g., Bonbrest v. Kotz, 65 F. Supp. 138 (D.D.C. 1946); Renslow v. Mennonite Hosp., 67 Ill. 2d 348, 367 N.E.2d 1250 (1977).

60 65 F. Supp. at 141-42. A viable fetus is one that is capable of living outside the uterus. Prosser, supra note 43, § 55, at 337 n.28. According to Prosser, viability

is a most unsatisfactory criterion, since it is a relative matter, depending on the health of mother and child and many other matters in addition to the stage of development. Certainly the infant may be no less injured; and all logic is in favor of ignoring the stage at which it occurs.

Id. at 337.

61 E.g., Smith v. Brennan, 157 A.2d 497 (NJ. 1960); Kelly v. Gregory, 282 App. Div. 542, 125 N.Y.S.2d 696 (1953). The cases following Bonbrest “brought about the most spectacular abrupt reversal of a well settled rule in the whole history of the law of torts.” Prosser, supra note 43, § 55, at 336-37. In 1967, Texas became the last jurisdiction to overturn the rule denying recovery for prenatal injuries. Id. at 337. Moreover, “[a]lmost all of the jurisdictions have allowed recovery even though the injury occurred during the early weeks of pregnancy, when the child was neither viable nor quick.” Id.

62 Renslow v. Mennonite Hosp., 67 Ill. 2d 348, 355, 367 N.E.2d 1250, 1254 (1977) (citing 1 F. Pollock, Law of Torts 361 (14th ed. 1939)).

63 Prosser, supra note 43, § 55, at 327.

64 See notes 67-76 and accompanying text infra.

65 E.g., Piper v. Hoard, 107 N.Y. 73, 13 N.E. 626 (1887). See Veazey supra note 6, at 723-24.

66 See Kass * Shaw, note 8 supra; Shaw, note 8 supra.

67 41 Ill. App. 2d 240, 190 N.E.2d 849 (1963), cert, denied, 379 U.S. 945 (1964).

68 The Zepeda court explained the rationale of conditional prospective liability: “It makes no difference how much time elapses between a wrongful act a nd a resulting injury if there is a causal relationship between them.” Zepeda v. Zepeda, 41 Ill. App. 2d 240, 250, 190 N.E.2d 849, 853 (1963). See Endresz v. Friedberg, 24 N.Y.2d 478, 485-86, 248 N.E.2d 901, 905, 301 N.Y.S.2d 65, 70 (1969); Park v. Chessin, 88 Misc. 2d 222, 230, 387 N.Y.S.2d 204, 210 (Sup. Ct. 1976); Veazey, supra note 6, at 724.

69 Zepeda v. Zepeda, 41 Ill. App. 2d 240, 253, 190 N.E.2d 849, 855 (1963).

70 483 F.2d 237 (10th Cir. 1974).

71 Id. at 238.

72 Id. at 240.

73 67 Ill. 2d 348, 367 N.E.2d 1250 (1977).

74 Id. at 349-50, 367 N.E.2d at 1251.

75 Id. at 357, 367 N.E.2d at 1254-55.

76 Id. at 357, 367 N.E.2d at 1255.

77 See notes 44-45 and accompanying text supra. The awarding of monetary damages to the infant for wrongful life as well as to the child's parents in a wrongful birth action would not be duplicative. The U.S. Supreme Court has explained that: “[A] single wrong is capable of producing separate and distinct injuries, those to the decedent and those to his beneficiaries.” Sea-Land Services v. Gaudet, 414 U.S. 573, 598-99 (1974). The wrong done to the infant-plaintiff cannot be adequately remedied if he is not allowed to recover for wrongful life. See Williams v. State, 46 Misc. 2d 824, 832, 260 N.Y.S.2d 953, 960 (Ct. Cl. 1965).

78 See Prosser, supra note 43, § 30, at 143-44.

79 The defects may be caused by the mother's use of drugs prior to or during her pregnancy, e.g., Jorgensen v. Meade Johnson Laboratories, Inc., 483 F.2d 237 (10th Cir. 1973), or by radiation, for example.

80 400 N.Y.S.2d at 116.

81 E.g., Gleitman v. Cosgrove, 49 NJ. 22, 227 A.2d 689 (1967).

82 See notes 89-101 and accompanying text infra. Similar to right-to-die cases are cases involving the right of an individual to refuse life saving medical treatment. Courts have long held that a competent individual may choose to refuse life saving treatment absent a compelling state interest. See In re Estate of Brooks, 32 Ill. 2d 361, 205 N.E.2d 435 (1965). However, a distinction should be drawn between these cases and right-to-die cases that, like wrongful life cases, involve the question of whether third parties can decide if an individual would be better off if he were not alive. More analogous to the wrongful life situation are “living will” statutes. E.g., CAL. HEALTH * SAFETY CODE §§ 7185-7195 (West 1978). These statutes are, in effect, a codification of the right to die, and provide that a competent individual can choose to direct health care personnel not to take extraordinary measures to prolong his life should he suffer an irreversible injury or become terminally ill. Thus, health care personnel can allow an incompetent individual to die a natural death in accordance with that individual's wishes. See Note, Statutory Recognition of the Right to Die: The California Natural Death Act, 57 B.U.L. Rev. 148 (1977)Google Scholar.

83 The court in Gleitman v. Cosgrove, 49 N.J. 22, 30, 227 A.2d 689, 693 (1967), quoted Theocritus: “For the living there is hope, but for the dead there is none.“

84 Tedeschi, supra note 14, at 515.

85 Id.

86 49 N.J. 22, 227 A.2d 689 (1967).

87 Id. at 26, 227 A.2d at 691.

88 W. at 30, 227 A.2d at 693.

89 1977 Mass. Adv. Sh. 2461, 370 N.E.2d 417 (1977).

90 70 N.J. 10, 355 A.2d 647 (1976).

91 1977 Mass. Adv. Sh. 2461, 2468, 370 N.E.2d 417, 421 (1977).

92 Id. at 2467, 370 N.E.2d at 421.

93 Id. at 2469, 370 N.E.2d at 422.

94 The Saikewicz court based its holding on the constitutional right to privacy, which it found protected an individual against “unwanted infringements of bodily integrity in appropriate circumstances.” Id. at 2475, 370 N.E.2d at 424.

95 70 N.J. 10, 355 A.2d 647 (1976).

96 Id. at 25, 355 A.2d at 654.

97 Id. at 26, 355 A.2d at 655.

98 Id. at 4 1 , 355 A.2d at 664.

99 Id. at 40, 355 A.2d at 663.

100 Id. at 41, 355 A.2d at 665.

101 Id. at 54, 355 A.2d at 671-72.

102 Although a right-to-die case may be presented by a wrongful life plaintiff, there is no basis to the assertion that, since a wrongful life plaintiff is arguing that he would have been better off if he were not alive, the appropriate remedy for him, like the individual involved in a right-to-die case, should be death. Right-to-die cases do not advocate that any affirmative action be taken to bring about the death of the individual involved. See Superintendent of Belchertown State School v. Saikewicz, 1977 Mass. Adv. Sh. at 1472-73, 370 N.E.2d at 423.

103 See Prosser, supra note 43, § 126, at 898.

104 Every American jurisdiction allows the survival of property injury actions. Most jurisdictions allow the survival of actions for non-personal injuries such as deceit. More than half of the jurisdictions allow the survival of actions for personal injuries. PROSSER, supra note 43, § 126, at 900. Survival statutes allow the plaintiffs estate to recover the damages that the plaintiff could have recovered had he lived. Wrongful death statutes, on the other hand, allow third parties to recover for the harm they have suffered because of the death of the decedent. Id. § 127, at 901-02.

105 Id. § 126, at 900.

106 Id. § 126, at 898.

107 Id. § 126, at 900. E.g., Waller v. First Sav. * Trust Co., 103 Fla. 1025, 138 So. 780 (1931); In re Grainger's Estate, 121 Neb. 338, 237 N.W. 153 (1931).

108 Prosser, supra note 43, § 126, at 901.

109 “The ‘prophylactic’ factor of preventing future harm has been quite important in the field of torts. The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer.” Prosser, supra note 43, § 4, at 23. See also Morris, Rough Justice and Some Utopian Ideas, 24 Ill. L. Rev. 730 (1930)Google Scholar (punishment); Williams, The Aims of the Law of Tort, 4 Curr. Leg. Prob. 137 (1951)CrossRefGoogle Scholar (deterrence).

110 See note 32 supra.

111 Note, supra note 23, at 1009. “[T]here should be a point at which life under sufficiently adverse conditions could be deemed to be neither more nor less desirable than nonexistence, and it is to the equivalent of this position which the award of money damages should restore plaintiff.” Contra, Note, supra note 19, at 64; Tedeschi, supra note 14, at 538.

112 Tedeschi, supra note 14, at 538.

113 See Note, supra note 19; Note, supra note 23.

114 Tedeschi, supra note 14, at 530.

115 Note, supra note 19, at 62-65. That Note argues that nonexistence has a value of zero while existence may have both positive and negative aspects. The Note maintains that language in the Gleitman case implies that the value of nonexistence is negative. Id. at 64-65.

116 Note, supra note 23, at 1009.

117 See note 4, supra. The benefits rule also has been applied in some cases of trespass quare clausem fregit in which the defendant destroyed the plaintifrs property while at the same time replacing it with other property. If the benefits outweighed the detriments the court awarded only nominal damages. E.g., Jewett v. Whitney, 43 Me. 242, 254-55 (1857). See Note, supra note 23, at 1009.

118 According to one authority:

Translating pain and anguish into dollars can, at best, be only an arbitrary allowance, and not a process of measurement, and consequently the judge can, in his instructions, give the jury no standard to go by; he can only tell them to allow such amount as in their discretion they may consider reasonable.

C. Mccormick, Handbook on the Law of Damages, § 88, at 318 (1935). See Prosser, supra note 43, § 54, at 327-28 (emotional distress).

119 Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563 (1931).

120 Stills v. Gratton, 55 Cal. App. 2d 698, 705, 127 Cal Rptr. 652, 656 (1976).

121 “[T]he law has moved forward toward the recognition of moral responsibility as one basis of the remedy, and at least a partial identification of tort liability with the immoral conduct which would not be expected of a good citizen.” Prosser, supra note 43, § 4, at 17.

122 Superintendent of Belchertown State School v. Saikewicz, 1977 Mass. Adv. Sh. 2461, 2470, 370 N.E.2d 417, 422 (1977).

123 Id. at 2470, 370 N.E.2d at 435. “Such questions of life and death seem to us to require the process of detached but passionate investigation and decision that forms the ideal on which the judicial branch of government was created.” Id.

124 Stewart v. Long Island College Hosp., 35 App. Div. 2d 531, 532, 313 N.Y.S.2d 502, 503 (1970).

125 Park v. Chessin, 400 N.Y.S.2d 110, 115 (1977) (Titone, J., dissenting).

126 Zepeda v. Zepeda, 41 111. App. 2d 240, 262, 190 N.E.2d 849, 859 (1963).

127 Williams v. State, 18 N.Y.2d 481, 483, 223 N.E.2d 343, 344, 276 N.Y.S.2d 885, 885 (1966).

128 Renslow v. Mennonite Hosp., 67 Ill. 2d 348, 361, 367 N.E.2d 1250, 1257 (1977) (Dooley, J., concurring).

129 Sec Park v. Chessin, 400 N.Y.S.2d at 115 (Titone, J., dissenting). Contra, Park v. Chessin, 88 Misc. 2d at 230, 387 N.Y.S.2d at 210.

130 E.g., Mitchell v. Rochester Ry. Co., 151 N.Y. 107, 45 N.E. 354 (1897). One authority observes that this objection has “been demolished many times, and it is threshing old straw to deal with [it].” Prosser, supra note 43, § 54, at 327. See also Note, supra note 23, at 1016- 17; Friendly, The Gap in Lawmaking—Judges Who Can't and Legislators Who Won't, 63 Colum. L. Rev. 787 (1963)CrossRefGoogle Scholar.

131 Sec Park v. Chessin, 400 N.Y.S.2d at 115 (Titone, J., dissenting).

132 See Park v. Chessin, 400 N.Y.S.2d at 118 (Titone, J., dissenting). But see Note, supra note 19, at 75-76.

133 See Park v. Chessin, 88 Misc. 2d at 231-32, 387 N.Y.S.2d at 211.

134 One commentator maintains that the argument that the acceptance of a cause of action will cause a flood of litigation is often made by courts who do not want to face difficult issues. He observes:

A person's claim should not be rejected because of the possibility of other claims in the future of equal merit. A court's function is to provide a remedy to those who deserve it even at the expense of a “flood of litigation”, and those courts who refuse recovery on such a basis may very well be confessing their “incompetency.”

Note, A Cause of Action of Ignominious Birth, 11 S.D. L. Rev., 180, 188 (1966).

135 See notes 44-45 and accompanying text supra.

136 See Park v. Chessin, 400 N.Y.S.2d at 118 (Titone, J., dissenting).

137 See Park v. Chessin, 88 Misc. 2d at 232, 387 N.Y.S.2d at 211.

138 See 138 Park v. Chessin, 400 N.Y.S.2d at 118 (Titone, J. , dissenting).

139 Note, supra note 19, at 75-76.

140 Id. That Note argues that a child whose deformities are severe enough to be able to maintain an action for wrongful life would be incapable of bringing a suit against his parents on his own initiative. However, this theory does not take into account the possibility of a guardian ad litem being appointed to represent the child's interests.

141 See notes 44-45 and accompanying text supra.

142 Griswold v. Connecticut, 381 U.S. 479 (1965).

143 Roe v. Wade 410 U.S. 113 (1973).

144 See Kass * Shaw, supra note 8, at 220.

145 The United States Supreme Court has stated: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).

146 But see Park v. Chessin, 88 Misc. 2d at 231-32, 387 N.Y.S.2d at 211.

147 See id.

148 See note 77 supra.