Lay juries do not have the necessary knowledge of medical practice to evaluate the conduct of doctors without the assistance of an expert witness.
[5] The plaintiffs may also prove the negligence element by showing that the doctor failed to properly disclose the availability of genetic or prenatal screening procedures.
[6] As in other failure to disclose cases, the plaintiff will need to show that doctor owed a duty to make the disclosures at issue.
The plaintiffs in a wrongful birth case may claim that their harms consist in having a child with an undesired abnormality, or in having been denied the opportunity to make a fully informed choice as to whether to conceive or to abort the fetus.
[7] More recently, plaintiffs have been able to prove the causation element by showing that the defendant's negligence deprived them of the opportunity to fully consider the choice whether or not to conceive or abort their fetus.
[11] Some courts have ruled that plaintiffs may recover additional damages, such as those for emotional distress, loss of consortium, and physical pain suffered by the wife during delivery of an unhealthy child.
[citation needed] Thus, more prospective parents will become aware of that their fetuses have congenital abnormalities, giving them reason to abort.
Academics concerns have also been raised that wrongful birth suits restrict rather than advance the freedom of choice by parents and doctors.
For instance, in 2012, several disability rights organizations wrote a letter to the ACLU protesting its language in support of wrongful birth lawsuits.
[19] It is generally felt that allowing wrongful birth lawsuits for things like Down Syndrome and Spina Bifida sends a clear message that such individuals should not be born.
[citation needed] In the Alabama case of Keel v. Banach the plaintiffs were a man and his pregnant wife, who both sought to avoid having a child with genetic or developmental abnormalities.
"[8] The plaintiffs could recover for any medical expenses caused by the defendant's negligence as well as for the physical pain of the wife, loss of consortium and mental and emotional suffering.
[27] In a wrongful conception case, the plaintiffs claim that their doctor negligently performed a vasectomy, tubal ligation, or other sterilization procedure, resulting in an unwanted pregnancy or birth.
[28] In 2003, the Indiana Supreme Court recognized the medical malpractice tort of "wrongful pregnancy" when a woman became pregnant after a failed sterilization procedure.