## Facts

- Shirley Berman, age 38, received prenatal care from Dr. Ronald Allan and Dr. Michael V. Attardi from February to November 1974.
- The physicians allegedly failed to inform Mrs. Berman about amniocentesis, a prenatal diagnostic procedure that could detect serious chromosomal abnormalities through karyotype analysis.
- On November 3, 1974, the Bermans’ child, Sharon Esther Berman, was born with Down syndrome.
- The Bermans alleged that, if informed of amniocentesis and the age-related risk of chromosomal defects, they would have obtained testing and would have terminated the pregnancy if Down syndrome were detected.
- The complaint asserted (1) a “wrongful life” claim on behalf of the child and (2) a “wrongful birth” claim by the parents for emotional distress and related damages.

## Issues

1. Whether a child born with congenital defects may sue for “wrongful life” based on alleged negligent failure to provide prenatal information that would have led the parents to terminate the pregnancy.
2. Whether parents may sue for “wrongful birth” when physicians allegedly fail to disclose prenatal diagnostic options that would have enabled an informed decision to avoid the birth of a severely impaired child, and what damages are recoverable.

## Decision

- The Supreme Court of New Jersey affirmed summary judgment against the child’s wrongful-life claim, declining to recognize that cause of action.
- The court reversed summary judgment against the parents’ wrongful-birth claim and remanded for further proceedings.
- The court held that physicians may have a duty to disclose material prenatal diagnostic options (including amniocentesis) when medically indicated, and liability may follow if nondisclosure deprives parents of informed reproductive choice.
- The court permitted the parents to seek damages for emotional and mental anguish tied to the deprivation of informed choice, while limiting recovery consistent with proximate cause and public policy.

## Legal Principles

- A wrongful-life claim fails where the alleged negligence did not cause the child’s congenital condition but instead relates to nondisclosure that allegedly prevented abortion; courts cannot meaningfully measure damages by comparing impaired life to nonexistence.
- A wrongful-birth claim may lie in negligence when clinicians fail to disclose material prenatal information and diagnostic options that accepted medical practice would communicate to a patient, particularly where risk factors (such as advanced maternal age) make testing relevant.
- Causation for wrongful birth turns on whether the parents would have pursued testing and chosen lawful termination if properly informed and if the condition were detected.
- Recoverable damages for wrongful birth may include parents’ emotional distress resulting from the loss of informed choice, with limits on economic recovery guided by proximate cause and public policy.

## Conclusion

The court rejected a child’s claim that she should not have been born but recognized that parents may recover for wrongful birth when negligent nondisclosure of prenatal testing options deprives them of an informed decision to avoid the birth of a severely impaired child, subject to damages limitations.


Berman v. Allan, 404 A.2d 8 (N.J. 1979)