During the hearings for a new justice who may be inclined to overturn Roe v Wade (410 U.S. 113 (1973) or who may be expected to criminalize the use of birth control methods, it may be interesting to see what the effect may be on the damages related to wrongful life and wrongful pregnancy actions.

Wrongful life and wrongful birth typically involve the birth of an unhealthy child. Wrongful conception or wrongful pregnancy typically involves the birth of a healthy child. In wrongful life, typically the child seeks the damages while in wrongful pregnancy the parents seek damages.

In, for example, Burke v. Rivo (MA, 1990), the State Supreme Court listed three reasons why couples may seek sterilization: to prevent the birth of a defective child, harm to the mother’s health, or the additional expense of raising a child. Reasons for abortion are often similar though several other reasons, such as conception as a result of rape, can be in play here too.

Past damage awards include calculations of the medical costs related to birth or abortion and prenatal expenses, loss of market wages during pregnancy, lost household services and care to other family members during the pregnancy, pain and suffering from childbirth and a failed procedure, the cost of raising a child, lost market wages during child-rearing, loss of household services and care to other family members during pregnancy and the offset by the expected benefit of a healthy child or unhealthy child. 

Some of these damages may need to be reviewed in case Roe v Wade is overturned, or birth control becomes criminalized because the denial of illegal opportunities should probably not have been awarded damages. If for instance, damages resulting from a wrongful life after a failed abortion, are found to be illegally awarded, will those sums of money need to be returned?