An Ohio couple won a wrongful-birth lawsuit Friday in Ohio Supreme Court, successfully arguing that they should be compensated for the birth of their son, whom they would have aborted had doctors told them that he had a birth defect. In a 4-3 decision, the justices agreed that the doctors were liable because the defect should have shown up on the genetic screening that the couple sought during the pregnancy.

The case is being played in the press as a victory for both sides, because the majority were able to agree only that the couple should be compensated for the cost of the birth itself, not for the millions that the couple wanted for the costs of bringing up their son (including the emotional cost to them). However, as Justice Terrence O'Donnell wrote in his dissenting opinon, the case in fact creates a new and highly disturbing area of legality which the Ohio Legislature alone should have power to grant.

I have lately been reading dissenting opinions by justices respectful of life from conception to death, who go against the flow of judicial activism. They tend to come from Christian (particularly Catholic) backgrounds and do a significant significant amount of charitable work. Justice O'Donnell is no exception:

Justice O'Donnell is currently a member of the 2005 Ohio State Bar Foundation Fellows Class, and also serves as an officer of Our Lady of the Wayside, a nonprofit organization dedicated to serving the needs of the mentally and physically challenged. His brother, John, is a group home resident at Fairview House, owned and serviced by Our Lady of the Wayside. He is a past board member of Magnificat High School and the Lawyers Guild of the Catholic Diocese of Cleveland. He currently lectures on topics of professionalism and ethics statewide and continues to promote implementation of a statewide Mentoring Program for new lawyers. He has served as past chair of the Cleveland Bar Association Law Related Education Committee and the Student Essay Contest and is a founding member and past president of the Legal Eagles, a law fraternity of St. Edward High School in Lakewood, Ohio. Justice O'Donnell has also served as chairman of the Ohio Legal Rights Service Commission, which advocates for mentally retarded and mentally ill persons statewide.

{¶65}Moreover, the allowance of damages requires a legal determination that life — albeit "unhealthy," as the lead opinion characterizes it, or genetically defective — can constitute an injury cognizable at law. To my mind, life, in any form, cannot constitute an injury at law.

{¶66} As observed in Azzolino, "'Although courts and commentators have attempted to make it such, wrongful birth is not an ordinary tort. It is one thing to compensate destruction; it is quite another to compensate creation. This so-called "wrong" is unique: It is a new and on-going condition. As life, it necessarily interacts with other lives. Indeed, it draws its "injurious" nature from the predilections of the other lives it touches. It is naive to suggest that such a situation falls neatly into conventional tort principles, producing neatly calculable damages.'" Id., 315 N.C. at 112-113, 33 S.E.2d 528, quoting Burgman, Wrongful Birth Damages: Mandate and Mishandling by Judicial Fiat (1978), 13 Val.U.L.Rev. 127, 170.

... {¶70} During oral argument before our court, the Schirmers urged recovery of damages for denial of their right to obtain an abortion; a thorough examination of the record reveals, however, that no such denial occurred. Rather, at best, the evidence demonstrates only two of the four elements of a medical negligence claim, i.e., an existing duty of a medical professional and a breach thereof. No evidence exists to support a legal conclusion that the breach of duty by the medical professional either proximately caused the loss of an opportunity for an abortion or proximately caused the genetic defect.

{¶73} In Ault v. Jasko (1994), 70 Ohio St.3d 114, 637 N.E.2d 870, the court announced a rule of law allowing claimants to bring a cause of action for alleged sexual abuse at any time between the date of the alleged abuse and the revived memory of it. In his dissenting opinion, Chief Justice Moyer stated, "If that is to be the law of Ohio, it is the General Assembly that should declare it as such rather than this court." Today, however, it is this court which has created an entirely new cause of action in medical malpractice with its attendant problems of proximate cause and the scope of damages.

{¶74} The foregoing confirms my view that such a cause of action should not become a cognizable claim at law under traditional tort analysis absent legislative authorization, because it involves important matters of public policy better left to the General Assembly.