Can A Birth Be `Wrongful`?

March 30, 1985

Is KellyAnne O`Toole, 3, a pretty strawberry blond with blue eyes whose father and mother love her a lot, a compensable injury to her parents, a

``harm`` as recognized by law?

Her parents, Brian and Susanne O`Toole, claimed she is in their lawsuit against physicians who supposedly had sterilized Mrs. O`Toole by tubal ligation after the birth of a third child in 1980. For financial reasons and because Mrs. O`Toole had already had three caesarean births, the couple wanted no more pregnancies.

But the tubal ligation was not done properly, as was evident when Mrs. O`Toole again became pregnant. A Catholic, she refused to have an abortion. Two months after KellyAnne was born in November, 1981, the O`Tooles sued the doctors and hospital, asking not only compensation for medical expenses but also for child-care costs until their daughter reaches adulthood.

A New York State judge ruled in 1982 that the O`Tooles could collect damages for their medical costs and for pain and anguish. But she refused to allow them compensation for child-rearing expenses, citing a higher court`s earlier decision that such spending could be avoided by abortion.

Since then, the emotional, legally complicated issue of KellyAnne`s

``wrongful birth`` or ``wrongful conception`` has moved on to the state`s highest court. The O`Tooles have argued that they were trying to be responsible parents, to limit the size of their family to the number of children they could afford and that doctors had told them more pregnancies would endanger Mrs. O`Toole`s health.

There`s no doubt that the botched sterilization procedure will cost the O`Tooles thousands of dollars and that it has made their lives more difficult. A subway car cleaner, Mr. O`Toole was then earning about $200 a week and the family lived in a one-bedroom apartment. With KellyAnne`s birth, they had to move in with Mr. O`Toole`s mother and Mrs. O`Toole had to take a cab-driving job.

But courts in the few other states that have ruled on the ``wrongful birth`` issue have almost always decided that a healthy child does not damage parents, whatever the circumstances of his conception and birth. Children, the courts have usually said, are not an unmitigated burden. The joys and love they bring their mothers and fathers must be weighed against the costs of their care. And the final balance is impossible to measure in dollars and court verdicts.

New York`s highest court is right in its 6 to 0 ruling against KellyAnne`s parents on the ``wrongful birth`` question. In declaring that a healthy child is not a compensable ``harm,`` the opinion makes the valid point that ``the moral, social and emotional advantages arising from the birth are to be preferred to the protection of purely economic interests.``

The case now goes back to a lower court to settle other parts of the O`Tooles` claim. Their lawyer is considering appealing the ``wrongful birth`` issue to the U.S. Supreme Court. But one look at pretty little KellyAnne makes it difficult to believe anyone would judge her life to be wrongful.