(New Line Cinema)
Should I (or my guardian) be able to sue someone for an action which saved my life?
That’s the rather metaphysical question at the center of Ariel and Deborah Levy’s wrongful birth suit against Legacy Health System. Last Friday, a jury awarded the Portland, Oregon-area couple $2.9 million (out of a requested $7 million) for the birth of their daughter, Kalanit, now 4.
The Levys had two sons when, in 2006, Deborah unexpectedly became pregnant. Because she was 34, the Levys were concerned that the baby might have a genetic disorder.
Thirteen weeks into Deborah’s pregnancy, according to The Oregonian’s article, she had a chorionic villus sampling (CVS). It came back negative for Down Syndrome. The Levys say the tissue sample was negligently taken from Deborah, rather than from the baby. Legacy contends the CVS was properly done and the results were negative because Kalanit has mosaic Down Syndrome, meaning that a significant number of her cells don’t have an extra copy of chromosome 21.
Two later ultrasounds indicated that the baby had traits characteristic of people with Down Syndrome. But, the Levys say, doctors assured them the baby didn’t have Down Syndrome, based on the CVS.
A week after Kalanit was born, Deborah took her to the pediatrician for a well-baby check. There she learned that Kalanit had Down Syndrome.
The Levys sued Legacy, its lab and their doctors for $7 million for Kalanit’s lifetime care, as well as for their own emotional pain and suffering.
Says their attorney, David K. Miller,
These are parents who love this little girl very, very much. Their mission since the beginning was to provide for her and that’s what this is all about.
Well, not from the beginning, Mr. Miller.
To bring a wrongful birth suit, plaintiffs must show that they suffered harm and that the doctor’s negligence directly caused that harm. So, in this case, the Levys had to show that Kalanit wouldn’t have been born with Down Syndrome if Legacy hadn’t botched the test. Since we can’t “un-Down” a person, to bring suit the Levys had to–and did–testify that they would have aborted Kalanit had they known she had Down Syndrome.
But here’s the tricky part: The botched lab test not only gave them a baby born with Down Syndrome; it gave them a baby born, period. It gave them their well-beloved Kalanit.
I have no reason to doubt that the Levys do love their daughter. Nor that providing for Kalanit is what this is all about. But there’s a deep irony here: The child they would have killed, given the chance, they now love very, very much.
So was the allegedly botched lab test a curse, or a blessing?
Remember Gandalf and Frodo’s conversation in the Mines of Moria, in the first Lord of the Rings movie?
Frodo: I wish the Ring had never come to me. I wish none of this had happened.
Gandalf: So do all who live to see such times. But that is not for them to decide. All we have to decide is what to do with the time that is given us.
I wish none of this had happened. We all have parts of our lives like that–big parts, sometimes. We would rather have stayed back in Hobbiton, tending our gardens and hanging with friends at the Green Dragon of an evening. But instead we find ourselves on a quest we didn’t choose. And which, more often than not, we don’t even recognize as a quest. All we know is that it’s scary and hard and we’d rather be any place but here.
“Wrongful birth” suits, recognized in only about 25 American states, are based on a couple of false assumptions: that we should get to pick our children, and that they should be perfect.
But that’s not how life is. There are lots of things about our lives we don’t get to choose. We certainly don’t get to pick our kids. Not their personalities, not their characters, not their strengths and weaknesses, and not their health.
Is that bad? No. I’m glad I have the children I have. I’m just saying they are gifts, not choices.
I don’t think Deborah and Ariel Levy are terrible people. I respect the immensity of their loss and their pain, and I wish them much joy in each other and in their three children.
What I’m saying is that some of our highest joys and greatest growth spring from the places of our deepest suffering–and to avoid them is to avoid being truly human and fully alive.
That, as Leonard Cohen says,
There is a crack in everything: That’s how the light gets in.
And that, as Gandalf says,
What we have to decide is what to do with the life that is given us.
“. . . a couple of false assumptions: that we should get to pick our children, and that they should be perfect. But that’s not how life is.”
“I’m just saying [children] are gifts, not choices.”
Yes. And yes. Excellent post.
Life is nothing like I would have chosen for J, was nothing like I would have chosen for D–but they are both gifts, nonetheless.
These are all laudable sentiments that make enormous hardships that occur in life more palatable, for the moment. Whether overtly religious or not, these sentiments are premised on a philosophy that encourages acceptance of all life’s developments, regardless of how burdensome they may be. It also encourages resignation. Whatever will be, will be, period.
Contra wise, the Levy’s attempted to exert some control over their life and the shape of their family by genetic testing which is a multi-million dollar industry. Mrs. Levy was fully prepared to exercise her constitutional right to control the destiny of her family if the testing proved that the fetus would evolve into a baby with a significant and permanent brain defect.
The question now is who should pay for the huge amount of life time health care the child and then the adult will need, the insured health care company that negligently performed the test (assuming that to be true), or the Levy’s health insurance and the Levy’s themselves? If the health care company is not prepared to accept the consequences of negligent performance of the testing, then they shouldn’t offer the service and accept the fees for performing the test.
There are many reasons that a woman may choose to undergo an abortion. Unquestionably, it is a terribly difficult decison fraught with moral dilemmas. However, it is a constitutionally protected choice. Genetic testing laboratories exist in part so that a woman can make an informed decision about her future and the future of her family. When that ability to choose is taken away due to negligence, then it makes sense that the burden of the consequences should shift, in part, to the responsible party. There are real life decisions and real life consequences, not a story book tale about accepting one’s fate.
Yes, these are indeed real life decisions and real life consequences. And, if the CVS test had come back positive, the Levys would have paid the doctor to kill the little girl they now love dearly. Oops. To give a pass to that terribly difficult option, fraught with moral dilemmas, because it is a “constitutionally protected choice” (actually, it is a Supreme Court protected choice–there is nothing in the Constitution about being able to kill your child) is a cop-out. The Court (in another Court-protected but not Constitution-protected choice) at one time said that black people were property, not citizens (Dred Scott). Don’t let the Court do your thinking for you: They are not infrequently wrong.
This is not about a lifestyle of resignation, of blindly accepting one’s fate across the board. It’s about accepting the way things are rather than killing another human being to solve your problems. Killing may “fix” one problem, but it ushers in a host of others.
Beautiful rebuttal, CBC!
Yes, well said, CBC.
Who says Down syndrome children/adults are a “big burden” to society?
Many children are born with defects that need repair (heart, clefts and malformed limbs), but they grow up on to be working adults.
Many DS adults are able to function in society, hold jobs, and bring home a paycheck.
Any time a life is taken there are consequences.
There is One Supreme Being in charge of life; let not man interfere.
Yes, J.O., my eldest brother-in-law had Down Syndrome. He worked (and lived on his own) for many years–until he was hit by a car while in a marked crosswalk and disabled by the injuries he received. In fact, there was a time when all his other siblings were either in college or still at home–being supported substantially or entirely by their parents–and he was the only self-supporting sibling in the family.
There you go!
All life is valuable.
Just think how much more fruitful this Down Syndrome child’s life will be now that there is a fund of $2.6 million available to support her. At the trial, an economist calculated that is what the cost to society and the parents will be to take care of the child for a lifetime. It is true that some Down Syndorme children become happy, productive citizens. The Levy’s child may turn out to be one such person. So, if you believe that all children are God’s gift, regardless of how the ovum was inseminated, whether through rape, incest or simply due a wholly unplanned passionate coupling of senior citizens whose children are all grown, then there is no choice. I don’t dispute that. It is self-evident. If, on the other hand, you believe that true life begins sometime after the first trimester, when cells are assembling to become a potential life, then the Levy’s lawsuit does not seem unreasonable. The fact of the matter is that early termination of pregnacy, whether the embyro would have turned out to be Mother Teresa, or Adolf Hilter, is a right that the Supreme Court of this land has stated flows from the Amendments to our Constitution that comprise our Bill of Rights. This is the same Constitution that protects privacy and free speech and freedom of religion and separation of church and state and the right to possess as many automatic weapons as a citizen can afford. Obvioulsy, the Supreme Court does not always get it right. But the right of a woman to control her body during the first trimester of a pregnacy has stood up for over a half century, through liberal courts and conservative courts.
1) How much more “fruitful” Kalanit’s life will be now that her folks have $2.9 million with which to support her? I’m not getting the connection between money and fruitfulness. I don’t even know what you mean, actually, by “fruitful.” What’s clear to me from watching people with lots of money and people with almost no money across the years is that, as long as you’re not actually hungry or cold, there’s little or no correlation between money and happiness–unless perhaps it’s an inverse correlation: more money tends to correlate with less happiness.
2) *Some* Down Syndrome children become happy, productive citizens? According to msnbc.com, researchers at Children’s Hospital in Boston found that 99% of adults with DS interviewed are happy with their lives. I think we’d hard pressed to find another segment of the population that happy.
3) If you “believe that true life begins sometime after the first trimester, when cells are assembling to become a potential life,” well, at that point you’re out in the realm of personal spiritual belief, not science. Science knows nothing of “potential life.”
Mr. Justice Blackmun used that phrase (“potential life”) in Roe, of course–and that should clue you in to the fact that science was *not* a determining factor in the decision he authored. Biologically, something is either alive . . . or it’s not. Living organisms grow, metabolize, respond to stimuli and reproduce. The fetus, and going further back, the embryo and the zygote, of course all meet that definition. “Potential life” is not a scientific way of considering the issue.
If you want to go with a personal spiritual or philosophical belief of some sort, then you’re free to embrace Roe if you choose. If you want to go with science, you have to say that life begins at conception. There really is no other scientific option.
Sure, Roe is the law of the land, and has been for almost 40 years. But letting the Court do your thinking for you is a really bad habit. (And, again, Dred Scott comes to mind.)