Lead Opinion
Throughout her pregnancy, Dr. Jennifer Etkind was a patient of Dr. Ramon Suarez. After giving birth to a child with Down’s Syndrome, she and her husband filed suit against Dr. Suarez and his partnership, asserting a “wrongful birth” claim. Such a claim “is brought by the parents of an impaired child and alleges basically that, but for the treatment or advice provided by the defendant, the parents would have aborted the fetus, thereby preventing the birth of the child.” Atlanta Obstetrics & Gynecology Group v. Abelson,
1. Although a plurality of the Court of Appeals recognized the viability of a wrongful birth claim in Abelson, this Court granted certiorari and held “that ‘wrongful birth’ actions shall not be recognized in Georgia absent a clear mandate for such recognition by the legislature.” Abelson, supra at 714. Thus, Abelson established that the then-existing medical malpractice statute did not authorize a wrongful
this is an area more properly suited to legislative action as the legislature offers a forum wherein all of the issues, policy considerations and long range consequences involved in recognition of the novel concept of a “wrongful birth” cause of action can be thoroughly and openly debated and ultimately decided.
Abelson, supra at 718-719. Because the General Assembly has not enacted any legislation authorizing a recovery for the wrongful birth of a child, Dr. Etkind and her husband have no viable claim unless Abelson can be distinguished or is overruled.
Initially, the Etkinds contend that Abelson is factually distinguishable due to the medical advancements in the area of prenatal care which have occurred since that case was decided. However, Abelson, supra at 718, anticipated these developments and indicated that “with the continued advances in medical science which are occurring daily, the problems presented by the concept of ‘wrongful birth’ actions can only become increasingly more numerous and more complex.” Abelson, supra at 718. Thus, the rapid pace at which medicine has indeed moved in the interim validates, rather than distinguishes, Abelson’s ultimate conclusion that a cause of action for wrongful birth can be created only through the legislative process.
More importantly, the doctrine of separation of powers is an immutable constitutional principle which must be strictly enforced. McCutcheon v. Smith,
2. In the alternative, Dr. and Mr. Etkind assert that Abelson is distinguishable on legal grounds, because it conflicts with the subsequent decision in Planned Parenthood of Southeastern Penn. v. Casey,
Nothing in Casey holds that the Federal Constitution compels the states to recognize a woman’s right to bring a civil suit against her obstetrician for the negligent failure to assist her in making an informed abortion decision. The narrow holding in Abelson is that, absent legislation, parents in Georgia cannot recover damages for the wrongful birth of their child. This holding does not violate the constitutional rights of the parents of an impaired child, because the refusal to recognize a wrongful birth claim absent authorizing legislation does not constitute undue interference by Georgia in the exercise of the right to elect to have an abortion.
Georgia has not commanded doctors to interfere with a woman’s constitutional rights. Georgia’s reluctance to interject itself into the private relations of its citizens cannot be construed as affirming or encouraging private conduct for purposes of the Fourteenth Amendment. To find state action whenever a state has not acted would broaden state action to encompass practically all private conduct.
Campbell v. United States, 962 F2d 1579, 1583 (11th Cir. 1992). Abelson did not leave parents of impaired children with no possibility of obtaining a civil remedy, but held only that a cause of action for wrongful birth must be created by the legislative, rather than the judicial, branch of this state’s government. Although Georgia itself cannot unduly interfere with a woman’s constitutional right to obtain an abortion, this Court retains the exclusive power to determine whether parents of a child have a viable claim against an obstetri
Even if it could somehow be determined that the Georgia Supreme Court chose to disallow a cause of action for wrongful birth because it would promote abortion, this failure of Georgia to remedy the wrong committed by a private party does not make that party’s act an unconstitutional state act.
Campbell v. United States, supra at 1584. Casey does not compel an interpretation of the law of Georgia different from that reached in Abelson.
3. The Etkinds urge that we should overrule Abelson because it violates the Equal Protection Clause of the Georgia Constitution, which they contend guarantees them the same right to sue that was afforded to parents by the decision in Fulton-DeKalb Hosp. Auth. v. Graves,
The Equal Protection Clause of both the Federal and Georgia Constitutions requires that similarly situated individuals be treated in a similar manner. City of Atlanta v. Watson,
The plaintiffs in a wrongful pregnancy action never wanted to become parents, and their suit is based upon the alleged negligent performance of an actual sterilizátion or abortion procedure. “Such an action is no more than a species of malpractice which allows recovery from a tortfeasor in the presence of an injury caused by intentional or negligent conduct.” Graves, supra at 443 (1). As a traditional tort, wrongful pregnancy will not authorize a recovery of the expenses of raising the child, but only a limited “recovery of expenses for the unsuccessful medical procedure which led to conception or pregnancy, for pain and suffering, medical complications, costs of delivery, lost wages, and loss of consortium. [Cit.]” Graves, supra at 443 (2). The Etkinds, on the other hand, wanted a child, but allege that they would have elected an abortion rather than become parents of an impaired child. Accordingly, their claim is not based upon the occurrence of Dr. Etkind’s pregnancy, but upon its unwanted result. Because it involves placing a value on human life, the Etkinds’ wrongful birth claim, unlike the wrongful pregnancy
does not fit within the parameters of traditional tort law. The concept of such a cause of action 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. [Cit.]
Abelson, supra at 718. After articulating the differences between the causes of action, this Court ruled in Abelson that recognition of the parents’ right to recover for the wrongful birth of an impaired child must come from the General Assembly. Because the Etkinds are not in the same class as the parents in Graves, they have no viable challenge to Abelson on equal protection grounds.
4. The Etkinds further cite the Due Process Clause of the Georgia Constitution as authority for holding that this Court erroneously decided Abelson. However, that clause only protects Georgia citizens against state action, and does not affect the conduct of other private individuals. Reinertsen v. Porter,
5. Although, for the reasons discussed in Division 2, the decision of the Supreme Court of the United States in Casey has no constitutional bearing in this case, it does have significance in its invocation of the principle of stare decisis as support for reaffirmance of the controversial recognition of a woman’s right to an abortion.
[W]e recognize that no judicial system could do society’s work if it eyed each issue afresh in every case that raised it.*357 [Cit.] Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable. [Cit.]
Casey, supra at 854 (III) (A). As is true with regard to the existence of a constitutional right to an abortion, the validity of the reasoning of Abelson is not universally acknowledged. Indeed, the author of this opinion wrote for a plurality of the Court of Appeals in Abelson that
a “wrongful birth” claim is within the parameters of traditional Georgia tort principles. “Such an action is no more than a species of malpractice which allows recovery from a tortfeasor in the presence of an injury caused by intentional or negligent conduct. [Cit.]”
Atlanta Obstetrics & Gynecology Group v. Abelson, 195 Ga. App., supra at 277 (1). However, the issue now presented for resolution is not the persuasiveness vel non of the underlying rationale of Abelson, but the continued viability of its holding that a wrongful birth claim is not cognizable absent legislative authorization. Stare decisis is compelling support for adherence to the holding in Abelson, despite the continuing objections to its rationale.
The application of the doctrine of stare decisis is essential to the performance of a well-ordered system of jurisprudence. In most instances, it is of more practical utility to have the law settled and to let it remain so, than to open it up to new constructions, as the personnel of the court may change, even though grave doubt may arise as to the correctness of the interpretation originally given to it. [Cits.]
Cobb v. State,
Abelson has been followed consistently over the years. Vance v. T.R.C.,
“[E]ven those who regard ‘stare decisis’ with something less than enthusiasm recognize that the principle has even greater weight where the precedent relates to interpretation of a statute.” [Cit.] A reinterpretation of a statute after the General Assembly’s implicit acceptance of the original interpretation would constitute a judicial usurpation of the legislative function.
Abernathy v. City of Albany, supra at 90. Because it constitutes controlling authority on the interpretation of the statutory law of this state, Abelson is “binding upon us and will be followed in the present case unless the law upon which [it is] based has been subsequently changed by legislative action so as to require a different ruling at the present time.” (Emphasis supplied.) Brinkley v. Dixie Constr. Co.,
Stare decisis is a rule to insure uniformity. This tribunal, when it ceases to regard it, will greatly impair its value, and fail to secure public confidence. If this Court has been wrong from the beginning, on this subject, let the legislative power be invoked to prescribe a new rule for the future; until altered by that power, we are disposed to adhere to the rule which has been so long applied by our Courts and is so well known to the legal profession.
Adams v. Brooks,
Judgment affirmed.
Dissenting Opinion
dissenting.
In 1990, I was compelled to dissent to this Court’s decision in Atlanta Obstetrics & Gynecology Group v. Abelson,
I believe now, as I asserted then, that “a cause of action [for wrongful birth] exists within the framework of our traditional law of torts.” Id. at 723. In the interim since Abelson, I have not come to doubt that position, but I have modified my position on damages somewhat. In my dissent in Abelson, I stated my belief that “the extraordinary expenses of raising the child are recoverable,” but I have since come to agree with the damages approach taken by the
The rule of stare decisis is a wholesome one, but should not be used to sanctify and perpetuate error. . . . We deprecate and distrust rash innovation as much as the most conservative magistrates ought, but it has never been the doctrine of any court of last resort that the law is to be a refuge and safe asylum for all the errors that creep into it. . . . Courts, like individuals, but with more caution and deliberation, must sometimes reconsider what has been already carefully considered, and rectify their own mistakes. If this is to be done in any case, it would seem to be a case like the present. . . .
City of Atlanta v. First Presbyterian Church,
Concurrence Opinion
concurring.
In Atlanta Obstetrics & Gynecology Group P.A. v. Abelson, this Court held that a claim for “wrongful birth” did not fit within the traditional confines of tort law and, in view of the complex policy issues raised by such a claim, we deferred to the legislature rather than create a new cause of action.
I am authorized to state that Justice Sears joins in this concurrence.
Notes
See Ari Patrinos & Daniel W. Drell, Introducing the Human Genome Project: Its Relevance, Triumphs, and Challenges, ABA Judge’s Journal, summer 1997. Information about the human genome project, including portions of the ABA Judge’s Journal, is available on the Internet, Human Genome Project Information, <<http:/www.ornl.gov/TechResources/ Human_Genome/home.html».
Robert Sikorski & Richard Peters, Genomic Medicine, 278 JAMA 1212 (1997). Available on the Internet at «http:/www.ama-assn.org/sci-pubs/joumals/archive/jama/vol_278/ no_15/jjn71002.htm>>.