Appeal from the Circuit Court of Cook County; the Hon. Arthur
A. Sullivan, Jr., Judge, presiding.
JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
Plaintiffs, Michael Goldberg, Nancy Goldberg, his wife, and Jeffrey Goldberg, their son, *fn1 instituted this medical malpractice action against defendants, Stephen B. Ruskin and Strauss Surgical Group, Assoc., S.C. The Goldbergs' amended complaint attempts to set forth two causes of action. The first, a claim for damages based upon "wrongful life," was asserted by Michael and Nancy Goldberg on behalf of Jeffrey. The second, a claim for "wrongful birth" by the parents, sought compensation for injuries suffered by them in their own right.
According to the factual allegations set forth in the amended complaint, Ruskin is a licensed physician and surgeon in the State of Illinois specializing in obstetrics and gynecology, and on or prior to April 6, 1978, he practiced medicine as an employee of Strauss Medical Group. For a period of approximately nine months prior to Jeffrey Goldberg's birth on April 6, 1978, Jeffrey and Nancy Goldberg, his mother, were under the care of defendants. Jeffrey was born with Tay-Sachs disease. Plaintiffs allege that: at all relevant times, defendants had knowledge of Tay-Sachs disease, a devastating and terminal disease affecting infants; defendants knew that the disease has no known treatment and that it afflicts the offspring of Jewish parents at a "higher rate"; defendants knew that a simple testing procedure existed and was in general use within the medical community to determine whether a baby would be born with Tay-Sachs disease; and if the tests had been performed and revealed that Jeffrey would be born with the disease, and Michael and Nancy Goldberg had been informed by defendants of this fact, they would have caused the child to be aborted, which was their unqualified right under the law. Plaintiffs further allege that defendants were guilty of one or more of the following negligent acts or omissions: that they failed to inform Michael and Nancy Goldberg during pregnancy of the risk of Tay-Sachs disease; that they failed to impart to Michael and Nancy Goldberg the knowledge and choice to engage in the simple testing procedure; and that they failed to engage in said testing procedure. *fn2
Jeffrey Goldberg, through his parents, alleged, as a part of his wrongful life claim, that as a direct and proximate result of the negligent conduct of defendants, he "was born with Tay-Sachs disease and has suffered and will continue to suffer loss of motor function, loss of sensory function, blindness, deafness, pain, disability and numerous other injuries resulting in damages of a personal, permanent and pecuniary nature and finally certain death." He sought damages in an amount in excess of $15,000.
Michael and Nancy Goldberg allege, as a part of their wrongful birth claim, that as a direct and proximate result of defendants' negligence, they have become obligated "to pay large sums of money for doctor and hospital bills and other physical treatment for the care and treatment of Jeffrey," and they "have suffered * * * immeasurable emotional distress in the seeing and caring for their child, while he loses motor function, sensory function, sight, hearing, becomes disabled and suffers numerous other injuries resulting in damages of a personal, permanent and pecuniary nature and finally certain death." They also seek damages in an amount in excess of $15,000.
Upon defendants' motion to strike and dismiss the amended complaint, the circuit court entered an order dismissing Jeffrey Goldberg's cause of action for wrongful life. In this order, the circuit court also certified two questions relating to the parents' cause of action for wrongful life as "questions of law as to which there is a substantial ground for difference of opinion" and found that "an immediate appeal of this order may materially advance the ultimate termination of the litigation." These questions are: (1) "Does a cause of action exist in Illinois on behalf of parents for damages in the form of the costs of increased medical, hospital and physical care rendered to a child born with an inherited disease * * *?" and (2) "Do the parents * * * have a cause of action for their own emotional distress as the result of seeing and caring for their child while his physical condition degenerates into certain death?"
Plaintiffs appeal from the circuit court's judgment dismissing Jeffrey Goldberg's cause of action for wrongful life, and this court allowed defendants' petition for leave to appeal the interlocutory part of the circuit court's order.
At the outset, it is important to emphasize the posture in which this case is now before this court. The question presented for review is not whether plaintiffs should ultimately prevail in this litigation, but rather whether the amended complaint states cognizable causes of action. (See Becker v. Schwartz (1978), 46 N.Y.2d 401, 408, 413 N.Y.S.2d 895, 898, 386 N.E.2d 807, 810.) Since our review is limited to an evaluation of the sufficiency of the amended complaint, we must accept as true all well-pleaded facts. (See Ostendorf v. International Harvester Co. (1982), 89 Ill.2d 273, 280, 433 N.E.2d 253, 256; Wilczynski v. Goodman (1979), 73 Ill. App.3d 51, 54, 391 N.E.2d 479, 482.) Accordingly, we accept as true, without expressing any opinion as to defendants' liability, the allegations that defendants failed to inform Jeffrey's parents of the risk of Tay-Sachs disease and the testing procedure therefor, and that had they been accurately informed, they would have undergone the necessary tests, *fn3 the results of which would have precipitated a decision on their part to terminate the pregnancy.
• 1 Before addressing other contentions of the parties concerning the validity of plaintiffs' claims for wrongful life and wrongful birth, we address the defendants' argument that this court should not recognize such causes of action in tort because "the creation of novel torts should be left to the legislature." A similar argument was rejected in Naccash v. Burger (1982), 223 Va. 406, 413, 290 S.E.2d 825, 829. The Virginia Supreme Court, in recognizing the existence of a cause of action in favor of parents for the wrongful birth of a child born with Tay-Sachs disease, observed that the determination of the scope of the common law doctrine of negligence is within the province of the judiciary. The court stated:
"whether a cause of action exists for the wrongs complained of and the damages sought here is a question that should be determined, in our opinion, according to traditional tort principles. Only a novel twist in the medical setting differentiates the present situation from the ordinary malpractice action. Hence, * * * we believe we need not defer to the legislature, * * *." 223 Va. 406, 413, 290 S.E.2d 825, 829.
We agree with the reasoning of Naccash. To the extent that recognition of causes of action for wrongful life or wrongful birth would merely be an extension of existing principles of tort law to new factual situations, we can and should recognize them. (See Speck v. Finegold (1981), 497 Pa. 77, 83, 439 A.2d 110, 113; cf. Cockrum v. Baumgartner (1983), 95 Ill.2d 193, 196, 447 N.E.2d 385, cert. denied (1983), 464 U.S. 346, 78 L.Ed.2d 139, 104 S.Ct. 149 (recognizing a limited cause of action for wrongful birth by the parents of a healthy child).) Accordingly, we examine the purported medical malpractice causes of action pleaded in the amended complaint to determine whether each sets forth the existence of a duty, a breach of that duty and injury proximately resulting from the breach. See Cunis v. Brennan (1974), 56 Ill.2d 372, 374, 308 N.E.2d 617, 618.
• 2 In the purported cause of action for wrongful life, plaintiff Jeffrey Goldberg, through his parents, alleged, in effect, that as a result of the defendants' negligence he was not aborted, but rather was born to experience the pain and suffering attributable to Tay-Sachs disease. He did not allege that any negligence of the defendants caused his disease or that there was anything that the defendants could have done to alter the effects of the disease. See Dumer v. St. Michael's Hospital (1975), 69 Wis.2d 766, 771, 233 N.W.2d 372, 374-75.
The Illinois Appellate Court addressed the issue of wrongful life in Zepeda v. Zepeda (1963), 41 Ill. App.2d 240, 190 N.E.2d 849. In that case, an illegitimate son brought an action in tort against his father for causing him to be born illegitimate. The appellate court affirmed the dismissal of the son's complaint, stating:
"Recognition of the plaintiff's claim means creation of a new tort: a cause of action for wrongful life. The legal implications of such a tort are vast, the social impact could be staggering. * * *
* * * What does disturb us is the nature of the new action and the related suits which would be encouraged. Encouragement would extend to all others born into the world under conditions they might regard as adverse. One might seek damages for being born of a certain color, another because of race; one for being born with a hereditary disease, another for inheriting unfortunate family characteristics; * * *." (41 Ill. App.2d 240, 259-60, 190 N.E.2d 849, 858.)
The cause of action asserted on behalf of Jeffrey Goldberg is clearly distinguishable from an action by an illegitimate, but healthy child. Zepeda, therefore, is not dispositive of Jeffrey's wrongful life claim.
Wrongful life actions by unhealthy children like Jeffrey have been received with little favor by courts in this country. Among the courts refusing to recognize an action for wrongful life are the highest courts of New York and Wisconsin. (Becker v. Schwartz (1978), 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807; Dumer v. St. Michael's Hospital (1975), 69 Wis.2d 766, 233 N.W.2d 372; see also Berman v. Allen (1979), 80 N.J. 421, 404 A.2d 8.) The supreme courts of Washington and California, however, have recognized that a child may maintain a limited action for wrongful life to recover the extraordinary expenses necessary to treat his hereditary ailment. (Harbeson v. Parke-Davis, Inc. (1983), 98 Wn.2d 460, 656 P.2d 483; Turpin v. Sortini (1982), 31 Cal.3d 220, 643 P.2d 954, 182 Cal.Rptr. 337.) The latter courts would not permit such a child to recover for pain and suffering or other general damages. Harbeson v. Parke-Davis, Inc. (1983), 98 Wn.2d 460, 482, 656 P.2d 483, 496; Turpin v. Sortini (1982), 31 Cal.3d 220, 234-35, 643 P.2d 954, 963, 182 Cal.Rptr. 337, 346.
There are two major obstacles to a claim by an abnormal child for wrongful life. First, it is impossible to determine whether the child has suffered an injury in being born impaired rather than not being born. (Turpin v. Sortini (1982), 31 Cal.3d 220, 235, 643 P.2d 954, 963, 182 Cal.Rptr. 337, 346.) In other words, it does not appear that the child has suffered any legally cognizable injury. (Berman v. Allen (1979), 80 N.J. 421, 428-29, 404 A.2d 8, 12; Becker v. Schwartz (1978), 46 N.Y.2d 401, 411, 413 N.Y.S.2d 895, 900, 386 N.E.2d 807, 812.) The injury which Jeffrey allegedly suffered as a result of defendants' alleged negligence is that he was born with Tay-Sachs ...