## Facts

- Parents received prenatal care, counseling, and/or diagnostic testing from medical providers.
- The child was born with severe congenital or genetic defects.
- The parents alleged negligent prenatal counseling and/or testing prevented them from learning material information in time to make an informed decision about terminating the pregnancy.
- The parents sued in negligence for “wrongful birth,” seeking damages tied to the child’s disability-related needs and the parents’ related harms.
- The defendants argued New Hampshire law did not recognize wrongful birth or wrongful life claims and sought dismissal or judgment as a matter of law.

## Issues

1. Whether New Hampshire recognizes a negligence-based “wrongful birth” claim by parents alleging negligent prenatal counseling or testing deprived them of an informed choice to avoid the birth of a severely disabled child.
2. Whether New Hampshire recognizes a “wrongful life” claim by or on behalf of the child alleging the child would not have been born but for the defendants’ negligence.
3. If wrongful birth is recognized, what categories of damages are recoverable, including extraordinary disability-related expenses, ordinary child-rearing costs, and parental emotional distress.

## Decision

- The court recognized a cause of action for wrongful birth by parents under ordinary medical negligence and informed-consent principles.
- The court declined to recognize an independent cause of action for wrongful life on behalf of the child.
- The court permitted recovery of extraordinary expenses attributable to the child’s disability (e.g., special medical, custodial, and educational costs).
- The court denied recovery of ordinary child-rearing costs.
- The court allowed parental emotional distress damages to the extent permitted by New Hampshire tort doctrine and proved as caused by the negligence.

## Legal Principles

- Wrongful birth is treated as an application of traditional malpractice and informed-consent rules: providers owe reasonable care in prenatal testing and counseling, including disclosure of material information affecting reproductive decision-making.
- For causation, parents must prove that competent care and adequate disclosure would have provided a meaningful opportunity to choose whether to continue the pregnancy.
- The legally cognizable injury in wrongful birth is the loss of informed reproductive choice and resulting economic and emotional consequences, not the child’s existence as an injury.
- Wrongful life claims are not cognizable where adjudication would require courts to compare disabled life to nonexistence and to quantify damages on that basis.
- Damages in wrongful birth are limited to the incremental, disability-related costs beyond ordinary child-rearing expenses; ordinary costs are not awarded because any offsetting intangible benefits are not susceptible to reliable monetary valuation.

## Conclusion

New Hampshire recognized parents’ wrongful birth claims grounded in medical negligence and informed consent, allowed recovery for extraordinary disability-related expenses (and potentially parental emotional distress within existing limits), and rejected wrongful life claims because courts cannot measure damages by comparing life with disabilities to nonexistence.


Smith v. Cote, 128 N.H. 231, 513 A.2d 341 (N.H. 1986)