Child Rearing Expenses as a Compensable Damage in a Wrongful Conception Case: Burke v. Rivo

Abstract

INTRODUCTION |With the extensive use of sterilization as a means of contraception, the wrongful conception suit has become more prevalent. "Wrongful conception" is a medical malpractice claim in which the plaintiff is the parent of a normal, healthy infant whose conception was unplanned and unwanted. The plaintiff alleges that a physician had negligently performed either a sterilization procedure, postoperative fertility testing, genetic counseling, or an abortion. The plaintiff typically seeks to recover damages stemming from the unplanned pregnancy, birthing, and child rearing costs. The courts which have confronted wrongful conception cases have found the task of damage assessment troublesome. The Supreme Judicial Court of Massachusetts, Middlesex, recently tackled this issue in Burke v. Rivo. |The Massachusetts Supreme Judicial Court, in Burke, held that if the plaintiffs could show an economic motivation for the sterilization procedure, then they would be entitled to recover damages for child rearing costs. The court, however, further held that these damages should be offset by any benefits the parents derive from the addition of the child to their lives |This Note discusses Burke and the measure of damages in wrongful conception cases. The various theories regarding recoverable damages in a wrongful conception case are explored. In addition, other cases which have addressed the issue of the proper measure of damages in a wrongful conception cause of action are discussed. Finally, this Note analyzes the holding and reasoning of the Massachusetts Supreme Judicial Court in Burke, particularly the economic motivation analysis of the court, and concludes that this decision represents a paradigm upon which other courts may rely...