ARTICLES Wrongful Abortion: A Wrong in Search of a Remedy Ronen Perry, LL.D.* and Yehuda Adar, LL.D.t INTRODUCTION "Wrongful abortion" is an abortion that a pregnant woman is induced to undergo by negligent conduct (usually a medical misrepresentation).' As an example, early in her pregnancy a woman is told by her physician that a medication that she had taken will cause her baby to be born with a severe birth defect. Based on the expert opinion, she decides to undergo an abortion. Only after the abortion does she learn that the advice regarding the baby's health was a negligent misrepresentation and that the termination of the pregnancy was 2 unnecessary. In this Article, we argue that the law does not currently provide adequate incentives to avoid wrongful abortions, the consequences of which are often devastating. We suggest that the best solution to this problem may be built on the distinctive characteristics of the wrongful abortion setting. Validating the intuition that the status quo does not adequately respond to wrongful abortions requires a systematic and comprehensive analysis of existing law, and justifying our novel solution entails a thorough theoretical inquiry. Accordingly, this Article addresses two interrelated questions. First, how is * Professor, Faculty of Law, University of Haifa. t Adjunct Professor, Faculty of Law, University of Haifa. Visiting Scholar, Faculty of Law, University of Toronto. The authors are grateful to the editors of the Yale Journalo f Health Policy, Law, & Ethics for their valuable comments. 1. As we shall see below, the term "wrongful abortion" may be used in a much broader sense, but we shall focus on its narrowly defined meaning for reasons also set out below. 2. See Martinez v. Long Island Jewish Hillside Med. Ctr., 512 N.E.2d 538, 538 (N.Y. 1987). HeinOnline -- 5 Yale J. Health Pol'y L. & Ethics 507 2005 YALE JOURNAL OF HEALTH POLICY, LAW, AND ETHICS V:2 (2005) existing law likely to respond to wrongful abortions? We intentionally ask how the law is "likely to respond" and not how it actually responds. The problem of wrongful abortion has been the subject of judicial opinion only in a few sporadic cases, making it practically impossible to generate a comprehensive analysis of case law directly on this point. Our effort will therefore focus on identifying the legal issues involved and resolving them within existing (and relevant) legal frameworks. Second, how should the law respond to wrongful abortions? Wrongful abortions raise a unique problem to which current law does not provide an appropriate solution. Our objective is to discuss the various alternatives that policymakers might consider in response to this peculiar disparity. As there are only a handful of cases on the subject, and since our topic has not been discussed in any detail in the academic literature,3 we find it almost unavoidable to open this Article with an analysis of the factual settings in which wrongful abortions occur and a systematic itemization of their consequences. In Section I.A, we define more accurately the term "wrongful abortion" and explain through contrast and analogy the settings in which wrongful abortion cases arise. In Section I.B, we survey the social costs of wrongful abortions within two distinct categories: (a) parental losses, and (b) "loss of potential life," i.e., any loss that may be attributed to the destruction of potential human life. We point out where these two categories overlap and explain why they nonetheless merit separate discussion. Parts II and III discuss the anticipated legal response to wrongful abortions. In Part II we demonstrate that the law may respond quite effectively (although somewhat imperfectly) to parental losses within the traditional framework of tort law. In contrast, we show in Part III that nationwide, all branches of the law currently leave the loss of potential life (except for any overlap with parental losses) unaccounted for in most cases of wrongful abortion. We believe this is a significant and disturbing anomaly in American law, given that states' important and legitimate interest in preserving potential life has been well established in American legal thought. Finally, in Part IV we endeavor to find an appropriate legal means to rectify this inconsistency. We introduce and critically evaluate three possible legal paths of resolution: extending criminal liability to cover negligent inducement of abortion; expanding civil liability to cover the elements of the loss of potential life not currently compensable under tort law; and a discretionary civil fine, 3. The topic was mentioned only once, and rather briefly, in an American legal periodical. See Kathy Seward Northern, Procreative Torts: Enhancing the Common-Law Protection for Reproductive Autonomy, 1998 U. ILL. L. REV. 489, 527-29. Northern's article is mainly concerned with the violation of pregnant women's procreative autonomy. HeinOnline -- 5 Yale J. Health Pol'y L. & Ethics 508 2005 WRONGFUL ABORTION which we find the most attractive legal solution to the problem. At the outset, we emphasize that we take no stand concerning the fierce ongoing battle between the pro-life and pro-choice movements. We have no desire to provide either side with academic ammunition. We hope that both sides will support our effort: The proposed solution enhances the legal protection of states' interest in preserving potential life and at the same time improves the legal protection of the pregnant woman's right to privacy. It should be remembered that prevention of a wrongful abortion fulfills the prospective mother's true will. Therefore, our endeavor to strengthen the legal protection of the public interest in preserving potential life does not weaken the pregnant woman's procreative autonomy. On the contrary, since in cases of wrongful abortion the public interest in preserving potential life and the prospective mother's will coincide, our proposal simultaneously reinforces both without taking a stance on the appropriate scope of the abortion right. Supporters of abortion rights may argue that enhancement of the legal protection of potential life in various contexts may eventually undermine the mother's procreative autonomy. However, our proposal does not consider the unborn child to be a legal person.4 It is possible to protect a public interest in preserving certain life forms without recognizing their legal personhood. Legal protection of animals and plants serve as good examples. As adopting our proposal does not necessitate recognition of legal personhood in a fetus, it poses no risk to the mother's right to privacy (as long as and to the extent that it is recognized under the Constitution). Moreover, even if we based our proposal on the assumption that the fetus were a legal person, this would not necessarily turn the non-viable fetus into a constitutional person. In American jurisprudence, the idea that a legal person may not have all the rights of a constitutional person is well-established. Since only the interests of a constitutional person might be strong enough to overcome the pregnant woman's constitutional rights, recognizing the legal personhood of a fetus (at any stage of development) would not directly affect the pregnant woman's right to choose abortion.5 There is, however, the real possibility that a sweeping recognition of the legal personhood of fetuses in cases of wrongful abortion and their like may lead the Supreme Court to reevaluate its prior decisions on abortion rights. For those who fear this result, our proposal may be 4. However, several criminal statutes do consider the unborn child to be a legal person. See, e.g., Unborn Victims of Violence Act, 18 U.S.C.A. § 1841(a)(2)(C), (d) (West Supp. 2004) (stating that a fetus is a human being at any stage of gestation). 5. Cf Jeffrey Rosen, A Viable Solution: Why It Makes Sense To PermitA bortions and Punish Those Who Kill Fetuses, LEGAL AFF., Sept.-Oct. 2003, at 20, 21. HeinOnline -- 5 Yale J. Health Pol'y L. & Ethics 509 2005 YALE JOURNAL OF HEALTH POLICY, LAW, AND ETHICS V:2 (2005) preferable to at least one of the alternatives.6 I. WRONGFUL ABORTION AND ITS SOCIAL COSTS A. The Factual Setting "Wrongful abortion" will be used in this Article to describe an abortion instigated by wrongful conduct, as opposed to an abortion which is performed in a wrongful manner,7 although this term may be construed to embrace both types of cases.8 We further limit the scope of the term "wrongful abortion" to negligent inducement of abortion,9 as opposed to intentional inducement. Negligently induced abortions seem to us more interesting from a theoretical standpoint. To epitomize the various settings in which we believe an abortion is negligently induced, we use the seminal decision of the Supreme Court in Roe v. Wade1° as our starting point. This ruling articulated the scope of states' authority to regulate abortions. The guidelines were set in Justice Blackmun's opinion as follows: (a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to'the medical judgment of the pregnant woman's attending physician. (b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to matemal 6. See infra Subsection IV.D. L.a. 7. See, e.g., Williams v. Robinson, 512 So. 2d 58 (Ala. 1987) (failure to diagnose ectopic pregnancy, leading to the utilization of an improper method of abortion); Perguson v. Tamis, 937 P.2d 347 (Ariz. Ct. App, 1996) (death of pregnant woman due to negligent performance of abortion); Vuitch v. Furr, 482 A.2d 811 (D.C. 1984) (improper treatment of laceration of uterine wall after abortion); Shirk v. Kelsey, 617 N.E.2d 152 (Ill. App. Ct. 1993) (incomplete abortion); Ganapolskaya v. V.I.P. Med. Assocs., 644 N.Y.S.2d 735 (N.Y. App. Div. 1996) (perforated uterus caused by abortion procedure); see also Margaret E. Vroman, Annotation, Medical Malpractice in Performance of Legal Abortion, 69 A.L.R.4th 875 (1989) (analyzing various cases in which tort liability was imposed on physicians who negligently performed legal abortions). 8. But see Collins v. Thakkar, 552 N.E.2d 507, 509 (Ind. Ct. App. 1990), where the term "wrongful abortion" was used to describe a malicious and intentional termination of pregnancy without the expectant mother's consent: 9. In this Article, the term "negligence" refers to ordinary negligence only and not to gross negligence, unless otherwise stated. 10. 410 U.S. 113 (1973). HeinOnline -- 5 Yale J. Health Pol'y L. & Ethics 510 2005 WRONGFUL ABORTION health. (c) For the stage subsequent to viability,11 the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. In Planned Parenthoodv . Casey, a plurality of the Court rejected the "rigid trimester framework,"'' 3 but the Court affirmed the "essential holding" of Roe: a woman's right to have an abortion prior to viability, states' rights to regulate or proscribe abortions subsequent to viability in order to protect their interest in the potentiality of human life, and the states' interests from the beginning of the pregnancy in protecting the health of the woman and the life of the fetus.14 Although Roe limited states' power to regulate abortions, the statutory regulation of the subject in various states before this case was decided might shed some light on the circumstances in which wrongful abortion cases may arise. Until the late 1950s, most states proscribed any abortion (unless required to preserve the life of the mother).'5 Yet prior to Roe and following the release of the Model Penal Code (drafted in 1962), 16 several states had revised their abortion statutes to permit abortion in three types of cases: (1) where there was a substantial risk that continuance of the pregnancy would threaten the life or gravely impair the physical or mental health of the mother; (2) where there was a substantial risk that the child would be bom with grave physical or mental defect; and (3) where the pregnancy resulted from rape, incest, or other felonious intercourse. 17 Following Roe, all states must permit abortion even after viability in cases of the first type.18 Some sanction abortion after viability in one or two of the other 11. I.e., the stage when the fetus is capable of existing independently outside the mother's womb. The Supreme Court held that viability occurs at twenty-four to twenty-eight weeks of gestation. Id. at 160. 12. Id. at 164-65. 13. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 878 (1992). 14. Id. at 846. 15. Christopher P. Keleher, Double Standards: The Suppresion of Abortion Protesters' Free Speech Rights, 51 DEPAUL L. REv. 825, 834-35 (2002). 16. MODEL PENAL CODE § 230.3(2) (Proposed Official Draft 1962). 17. See Jeffrey L. Lenow, The Fetus as a Patient: Emerging Rights as a Person?,9 AM. J.L. & MED. 1, 5 (1983); Tom Ginsburg, Book Note, 85 CAL. L. REv. 749, 755 (1997) (reviewing NEAL DEVrNS, SHAPING CONSTITUTIONAL VALUES (1996)); see also, e.g., Doe v. Bolton, 410 U.S. 179, 202-05 (quoting the Georgia statute). 18. See, e.g., ALA. CODE § 26-22-3 (2004); ARiz. REV. STAT. § 36-2301.01 (2004); CONN. GEN. HeinOnline -- 5 Yale J. Health Pol'y L. & Ethics 511 2005 YALE JOURNAL OF HEALTH POLICY, LAW, AND ETHICS V:2 (2005) types of cases as well.19 Prior to viability, abortion is no longer limited to predetermined categories. 20 But even though cases of the three types mentioned above currently constitute a relatively small fraction of the various cases in which abortions are carried out in the United States,21 these three settings have a unique feature that makes them especially susceptible to the negligent instigation of abortion. In all of them, the pregnant woman's decision regarding the continuance of her pregnancy is substantially dependent on external information provided by a qualified professional and is not a purely independent decision (as in other settings). If the woman receives inaccurate information, she may be induced to abort a fetus that she would otherwise wish to give birth to. If the inaccuracy stems from negligence, the abortion is "wrongful." Accordingly, we have detected at least two archetypal cases of wrongful abortion. In a case of the first type, a pregnant woman (with or without a companion) seeks medical counseling regarding the possible perils related to the continuance of her pregnancy. The adviser mistakenly maintains that the pregnancy is fraught with substantial risks for the woman, and she consequently decides to undergo an abortion. Later it is found that the information given by the adviser was wrong.22 In a case of the second type, the woman seeks advice concerning the health and bodily integrity of her fetus, and decides to undergo an abortion after being told that the fetus is deformed or disabled. Here, too, it is eventually realized that the information was wrong.23 One may also consider a third type of case in which a woman is raped STAT. § 19a-602 (2004); DEL. CODE ANN. tit. 11, § 651 (2004); FLA. STAT. ANN. § 390.0111 (West 2003); GA. CODE ANN. § 16-12-141 (2004); IND. CODE ANN. § 16-34-2-1 (2004); KAN. STAT. ANN. § 65-6703 (2003); LA. REV. STAT. ANN. § 14:87(B)(2) (West 2004). 19. See, e.g., ARK. CODE ANN. § 20-16-705 (2003) (allowing abortion of viable fetus in cases (1) and (3)); MISS. CODE ANN. § 97-3-3 (2004) (same); see also COLO. REV. STAT. § 18-6-101 (2003) (allowing abortion of viable fetus in cases (i) and (2)); UTAH CODE ANN. § 76-7-302(2), (3) (2004) (same). Lastly, see N.M. STAT. ANN. § 30-5-1 (Michie 2004) (allowing abortion of viable fetus in all three cases). 20. Interestingly, at least one state statute enumerates the aforementioned cases as factors that should be considered as justifying abortion before viability. See IDAHO CODE § 18-608 (Michie 2004). 21. See Nikki Katz, Abortion Statistics, http://womensissues.about.com/cs/abortionstats/a/ aaabortionstats.htm (last visited Mar. 31, 2005). 22. Baker v. Gordon, 759 S.W.2d 87 (Mo. Ct. App. 1988). In that case, the doctor recommended an abortion in order to treat the mother's dysplasia. Later it was found that she had no dysplasia. The court held that the doctor was not negligent in recommending an abortion. 23. Martinez v. Long Island Jewish Hillside Med. Ctr., 512 N.E.2d 538, 538 (N.Y. 1987). The facts of this case were outlined in the Introduction. See also Johnson v. United States, 810 F. Supp. 7 (D.D.C. 1993) (resolving a dispute where a pregnant woman was informed that she had HIV, and that consequently her baby would be born with AIDS; after she had an abortion it was discovered HeinOnline -- 5 Yale J. Health Pol'y L. & Ethics 512 2005 WRONGFUL ABORTION shortly after having consensual sex with another and then discovers that she is pregnant.24 After being told by her physician that her partner is not the father of the fetus, she chooses to terminate her pregnancy, only to discover that the physician was wrong. It seems to us that cases of this type would be rather rare, albeit not completely impossible. We now attempt to further the understanding of our topic through contrast and analogy with other types of birth-related claims (BRC). One category of BRC consists of cases in which negligence by the defendant resulted in the birth of a healthy yet unwanted child. The negligence may manifest itself in the manufacture, provision, or installation of contraceptives;" in the performance of vasectomy 26 or tubal ligation;27 or in the carrying out of an abortion.28 These cases are frequently dealt with under the label of wrongful pregnancy (or wrongful conception in the appropriate cases).29 In a way, they represent a mirror image of wrongful abortion cases, although they are not exact reflections. In that she did not have HIV); Breyne v. Potter, 574 S.E.2d 916 (Ga. Ct. App. 2002) (resolving a dispute where a pregnant woman was informed that her fetus had Down's syndrome; after she had an abortion she discovered that the lab results were misinterpreted by her doctor); Kupat Holim v. Dayan, 55(1) P.D. 765 (1999) (lsr.) (resolving a dispute where a pregnant woman was told by her doctors that the fetus she was carrying was a male with severe bodily abnormalities, and urged her to terminate the pregnancy; after the abortion the woman saw that the fetus was a normal female). 24. We added a "shortly after having consensual sex" qualification because if the victim of rape were not involved in some kind of consensual sexual activity immediately before the occurrence of the crime, there would be no doubt with regard to the identity of the father. Theoretically, the identity of the father may also be uncertain where the victim of rape is involved in a consensual intercourse shortly after the rape. But this scenario seems to us unlikely given the psychological implications of rape. 25. See, e.g., Yasar v. Cohen, 483 So. 2d 1099 (La. Ct. App. 1986) (inserting negligently an intrauterine device); Troppi v. Scarf, 187 N.W.2d 511 (Mich. Ct. App. 1971) (misfilling of a prescription for birth control pills); Jackson v. Bumgardner, 347 S.E.2d 743 (N.C. 1986) (failing to replace an intrauterine device after surgery); J.P.M. v. Schmid Labs., Inc., 428 A.2d 515 (N.J. Super. Ct. App. Div. 1981) (manufacturing a defective condom). 26. See, e.g., Univ. of Ariz. Health Sci. Ctr. v. County of Maricopa Super. Ct., 667 P.2d 1294 (Ariz. 1983); McFarlane v. Tayside Health Board, [1999) 4 All E.R. 961 (Eng. H.L.). 27. See, e.g., Coleman v. Garrison, 327 A.2d 757 (Del. Super. Ct. 1974), affid, 349 A.2d 8 (Del. 1975); Flowers v. District of Columbia, 478 A.2d 1073 (D.C. 1984); Fulton-DeKalb Hosp. Auth. v. Graves, 314 S.E.2d 653 (Ga. 1984); Betancourt v. Gaylor, 344 A.2d 336 (N.J. Super. Ct. Law. Div. 1975); Mason v. W. Pa. Hosp., 453 A.2d 974 (Pa. 1982); Smith v. Gore, 728 S.W.2d 738 (Tenn. 1987); C.S. v. Nielson, 767 P.2d 504 (Utah 1988); James G. v. Caserta, 332 S.E.2d 872 (W. Va. 1985); Beardsley v. Wierdsma, 650 P.2d 288 (Wyo. 1982). 28. See, e.g., Stills v. Gratton, 127 Cal. Rptr. 652 (Cal. Ct. App. 1976). 29. See Anthony Jackson, Action for Wrongful Life, Wrongful Pregnancy, and Wrongful Birth in the United States and England, 17 Loy. L.A. INT'L & COMP. L.J. 535, 583 (1995). HeinOnline -- 5 Yale J. Health Pol'y L. & Ethics 513 2005 YALE JOURNAL OF HEALTH POLICY, LAW, AND ETHICS V:2 (2005) cases of wrongful pregnancy, practitioner negligence makes the fulfillment of the parents' will impossible, while in wrongful abortion cases practitioner negligence instigates, but does not necessitate, a decision that turns out to be inconsistent with such will. Another category of BRC, more closely related to wrongful abortion, consists of cases in which a woman (with or without'a companion) seeks medical advice regarding the health of her fetus; and decides to conceive or to continue her pregnancy once the adviser maintains that the child will not be born with congenital disabilities, a statement that is later found to be incorrect. The parents' cause of action for their resulting losses is labeled wrongful birth, while the infant's cause of action for his own losses is termed wrongful life.3° Wrongful birth actions are recognized in most common law jurisdictions,31 although they are barred in some.32 On the other hand, most jurisdictions do not allow recovery on wrongful life theory.33 30. For more elaborate discussions of these topics, see, for example, Alexander Morgan Capron, Tort Liability in Genetic Counseling, 79 COLUM. L. REv. 618 (1979); Constance Frisby Fain, Wrongful Life: Legal and Medical Aspects, 75 Ky. L.J. 585 (1987); Jackson, supra note 29; Thomas Keasler Foutz, "Wrongful Life": The Right Not To Be Born, 54 TuL. L. REv. 480 (1980); Kurtis J. Kearl, Turpin v. Sortini: Recognizing the Unsupportable Cause of Action for Wrongful Life, 71 CAL. L. REv. 1278 (1983); Douglas Edward Peck, Azzolino v. Dingfelder: North Carolina Court of Appeals Recognizes Wrongful Birth and Wrongful Life Claims, 63 N.C. L. REv. 1329 (1985); Carel J.J.M. Stolker, Wrongful Life: The Limits of Liability and Beyond, 43 INT'L & COMa. L.Q. 521 (1994); Mark Strasser, Wrongful Life, Wrongful Birth, Wrongful Death, and the Right To Refuse Treatment: Can Reasonable Jurisdictions:R ecognize All But One?, 64 MO. L. REv. 29 (1999); Harvey Teff, The Action for "Wrongful Life" in England and the United States, 34 INT'L & COMP. L.Q. 423 (1985); Michael A. Berenson, Comment, The Wrongful Life Claim-The Legal Dilemma of Existence Versus Nonexistence: "To Be or Not To Be, " 64 TUL. L. REv. 895 (1990); Timothy J. Dawe, Note, Wrongful Life: Time for a "Day in Court," 51 OHIO ST. L.J. 473 (1990); and James M. Parker, Comment, Wrongful Life: The Child's Cause of Action for Negligent Genetic Counseling in Texas, 16 ST. MARY'S L.J. 639 (1985). 31. Berman v. Allan, 404 A.2d 8 (N.J. 1979); Karlsons v. Guerinot, 394 N.Y.S.2d 933 (App. Div. 1977); Schirmer v. Mt. Auburn Obstetrics & Gynecologic Assoc., 802 N.E.2d 723 (Ohio Ct. App. 2003); Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975); Dumer v. St. Michael's Hosp., 233 N.W.2d 372 (Wis. 1975); C.A. 512/81 Zeitsov v. Katz, 40(2) P.D. 85 (Isr.); Berenson, supra note 30, at 899 n.14. This cause of action is also recognized in continental jurisdictions. See, e.g., BGHZ 76, 249 (F.R.G.). 32. See, e.g., Mn, N. STAT. § 145.424(2) (2004); 42 PA. CONS. STAT. § 8305(a) (2004). In both statutes wrongful birth actions are barred only to the extent that they are based on a claim that but for the wrongful act or omission of the defendant, the child would have been aborted. 33. See, e.g., Kush v. Lloyd, 616 So. 2d 415 (Fla. 1992); Siemieniec v. Lutheran Gen. Hosp., 512 N.E.2d 691 (I11. 1987); Kassama v. Magat, 792 A.2d 1102 (Md. 2002); Nelson v. Krusen, 678 S.W.2d 918 (Tex. 1984). In several jurisdictions, wrongful life claims are prohibited (in whole or in HeinOnline -- 5 Yale J. Health Pol'y L. & Ethics 514 2005 WRONGFUL ABORTION Wrongful birth is a more accurate mirror image of wrongful abortion. The former (just like wrongful pregnancy) deals with the non-prevention of the birth of an unwanted child, whereas the latter deals with the prevention of the birth of a wanted child. In both cases the defendant's negligence does not make the fulfillment of the parent's will physically impossible, but instigates a decision that turns out to be inconsistent with such will. This parallelism is useful in determining the expected legal response to wrongful abortions and in explaining why it is insufficient. B. The Social Costs The social costs of wrongful abortion generally consist of two components: parental losses and the loss of potential human life. These two ingredients overlap to a certain extent, but we have decided to discuss them separately for two reasons, which will become more obvious below. First, some of the parental loss is clearly independent of the loss of potential life and must be dealt with accordingly. In other words, despite a possible overlap between the two components, they have separate independent spheres that merit appropriate legal response. Recognizing this, we thought it would be somewhat artificial to discuss parental losses twice-once under the heading of "parental losses independent of the loss of the fetus,"and once within our discussion of the loss of potential life. Second, and more importantly, while the law seems to respond quite effectively to parental losses, it leaves the loss of potential life (exclusive of any overlap with the parental loss) unaccounted for in most (and in certain jurisdictions-all) cases of wrongful abortion. The separation of these two components helps to clarify the exact problem that this Article attempts to address, i.e., the problem of unaccountability for the loss of potential life, which may result in under-deterrence of medical advisers and an overly lenient retribution for negligent violation of an important public interest. In this Section, we analyze the various elements of each component and explain where they overlap. As regards parental losses, one may distinguish between pecuniary and non- pecuniary losses. Both include direct and relational losses. Direct parental losses are those incurred by the parents regardless of any harm done to their potential offspring. Relational losses are those incurred by a parent on account of the part) by statute. In some, a person cannot base an action on the claim that but for the conduct of another he or she would have been aborted. See, e.g., UTAH CODE ANN. § 78-11-24 (2004). Yet in others, a person cannot base an action on the claim that but for the conduct of another he or she would not have been conceived or, once conceived, would have been aborted. See, e.g., S.D. CODIFIED LAWS § 21-55-I (Michie 2003). HeinOnline -- 5 Yale J. Health Pol'y L. & Ethics 515 2005 YALE JOURNAL OF HEALTH POLICY, LAW, AND ETHICS V:2 (2005) damage caused to the fetus or to the other parent.34 We do not (and in fact cannot, as will be seen below) assume that the fetus may claim compensation for its "own" damage. At this stage we only use the damage caused to the fetus as a determinant for of the extent of the parental loss. The various types of parental losses are summarized in the following table. PECUNIARYLOSSES NON-PECUNIARY LOSSES Costs of unnecessary Maternal pain and suffering abortion, and any medical during the surgical intervention treatment consequent upon the and post-operational recovery. abortion. DIRECT LOSSES Chronic pain and suffering Lost wages during abortion related to the abortion.35 and post-operational recovery. Psychological reactions to the aforementioned pain.36 Loss of child's contribution to Mental anguish resulting from parents from anticipated the unnecessary loss of a wanted earning capacity. child (maternal/paternal). RELATIONAL LOSSES Loss of potential child's Paternal grief over maternal services.37 pain. Costs of medical/ Loss of the child's psychological treatment companionship and affection.38 related to the loss of a child. 34. See Ronen Perry, Relational Economic Loss: An IntegratedE conomic Justificationf or the Exclusionary Rule, 56 RUTGERS L. REv. 711, 712 (2004) (defining relational economic loss). 35. An abortion may result in serious pelvic and abdominal pain. See, e.g., Genie M. Smith et al., Pain of First Trimester Abortion: Its Quantification and Relations with Other Variables, 133 AM. J. OBSTETRICS & GYNECOLOLGY 489 (1979); Nancy Wells, Pain and Distress DuringA bortion, 12 HEALTH CARE FOR WOMEN INT'L 293 (1991). 36. See, e.g., E.A. Walker et al., Dissociationi n Women with Chronic Pelvic Pain, 149 AM. J. PSYCHIATRY 534 (1992). 37. As will be seen below, childrearing costs and efforts usually exceed any possible financial benefit that a child may bestow upon her parents. 38. This loss may be mitigated if the parents can have the same number of children they initially planned regardless of the abortion. HeinOnline -- 5 Yale J. Health Pol'y L. & Ethics 516 2005