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Texas Wesleyan Law Review

David Shurtz

Publication Date

3-1-1998

Document Type

Comment

Abstract

Thirty-five jurisdictions uniformly recognize the validity of a wrongful pregnancy claim. Texas, however, is not one of those jurisdictions. The majority of Texas courts recognize the validity of a wrongful pregnancy cause of action and award damages to the parents for an unwanted child, while other Texas courts do not. This Comment argues that Texas should recognize a wrongful pregnancy cause of action for two reasons: (1) all but one Texas court explicitly recognizes a wrongful pregnancy claim; and (2) a wrongful pregnancy claim is merely a descriptive label for medical malpractice. Moreover, the damages for such a claim should consist of (1) the medical damages associated with the pregnancy and birth, (2) damages in excess of a mother's medical expenses, and (3) financial expenses for education and maintenance of the normal, healthy child until the age of majority. Therefore, in a wrongful pregnancy cause of action, Texas should follow the Full Recovery Rule that permits parents to prove all damages proximately resulting from a negligent sterilization including child-rearing costs. Part I of this Comment will evaluate whether Texas should recognize a wrongful pregnancy cause of action. Part II will evaluate the three common methods of calculating and awarding damages in a wrongful pregnancy claim; Limited Recovery, Full Recovery, and the Benefits Rule. Finally, this Comment concludes that allowing parents to prove and recover child-rearing damages strengthens the family unit, maintains the best interest of the child, and is the best method to advance the goals of tort law and Texas public policy.

DOI

10.37419/TWLR.V4.I2.6

First Page

249

Last Page

272

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