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.