Wrongful Birth Statute Held To Be Unconstitutional

On Nov 14, 2012, the PA Superior Court (3-0) held that the Wrongful Birth Statute had been passed in violation of the “single subject” requirement of Article 3, Section 3 of the Pennsylvania Constitution. The case is SERNOVITZ v DERSHAW et al, 2012 Pa. Super. 248. The Associated Press story was in substantial part as follows:

A lawsuit based on a claim that doctors did not warn a pregnant woman she might give birth to a baby with severe defects can proceed because the Legislature violated the state constitution when it passed a law banning those types of suits, a state appeals court ruled Wednesday. A Superior Court panel issued a 3-0 ruling in the case of a couple who sued doctors and medical facilities they said did not inform the mother-to-be she carried a genetic mutation that causes a rare neurological condition called familial dysautonomia, which their son has. The judges said the ban on lawsuits based on so-called “wrongful birth” claims wasn’t sufficiently related to the rest of the bill when it passed in 1988 and therefore violated the state constitution’s single-subject provision.

The couple’s lawyer said they were suing to collect the millions of dollars it will take to provide medical care for their son, who recently turned 4. “I’m really gratified that the court understood our arguments and agreed with me,” The lawyer said. “It’s a significant decision, a law that’s been on the books for many years.” One of the defendants’ lawyers, declined to comment. The judges threw out the law’s provision on wrongful birth and other elements but left intact provisions that addressed the law’s main focus, post-trial matters in criminal cases. The Superior Court opinion noted “our concern and consternation” that the attorney general’s office chose not to participate in the case, even though it was a constitutional challenge in which the office would normally become involved. “We are left to conclude that the outcome of this case and the fate of the statutes at issue are not significant to the Commonwealth,” Judge Christine Donohue wrote. A spokesman for the Attorney General’s office declined to comment.


According to the New York-based Dysautonomia Foundation, the disease can cause severe gastrointestinal, cardiac, pulmonary, orthopedic, renal and ophthalmologic problems. Children with the disease, which is present from birth, lack basic reflexes such as the ability to swallow, and most patients use feeding tubes. The foundation says patients have diminished sensitivity to pain and lack the ability to produce emotional tears. “As we like to say, a world without pain or tears is not as good as it sounds,” said David Brenner, the foundation’s executive director.

From the desk of John R. Badal, president of the Liever, Hyman & Potter law firm, personal injury attorneys in the areas of medical malpractice ,auto, motorcycle  and truck  accidents, workers compensation , nursing home abuse and product defects located in Reading, Pa serving clients in Berks County and Schuylkill County  for more than 53 years.

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