Kansas Supreme Court upholds 2013 state law barring wrongful birth lawsuits

Titus Wu
Topeka Capital-Journal
Advocates for Kansans For Life sit in the gallery of the Kansas Senate chambers as lawmakers debate an amendment making abortion not a state constitutional right. KFL had advocated for the 2013 law barring wrongful birth lawsuits.

The state's highest court Friday morning ruled a state law barring wrongful birth lawsuits is valid and constitutional.

The decision was spurred by a couple trying to sue a doctor for failing to detect abnormalities in the fetus before the child was born. In 2014, Katherine A. Goodpasture provided an ultrasound that reported a fetus with a normal anatomy, but the parents alleged there should have been severe structural deformities and brain defects reflected.

Alysia R. Tillman, the mother, eventually gave birth to a child with "severe and permanent neurological, cognitive, and physical impairments." The parents alleged that the doctor's negligence in reporting an accurate ultrasound deprived Tillman of her right to make an informed decision about her options ― one can assume abortion as a possibility.

It's potentially what drove state lawmakers to pass in 2013 a law that shields doctors from liability in wrongful birth cases, signed by former Gov. Sam Brownback. Kansans for Life had advocated for the law's passage.

Tillman and the father tried to get the law overruled, arguing it violated their rights to a jury trial and to a remedy under the state constitution.

But the district court dismissed that argument, saying those rights "protect only those civil actions existing at common law before the Kansas Constitution's adoption in 1859" and that "wrongful birth claims were not recognized in Kansas until the Arche decision in 1990."

In addition, the district judge ruled that wrongful birth claims are distinct from your typical negligence claims protected by those rights.

"The proof required for and the policy behind wrongful birth are something wholly new and separate from simple negligence," the ruling said.

The Kansas Supreme Court agreed, saying it differed from negligence with the recognition of a new injury, the adoption of factual requirements for that injury to be actionable and the formulation of rules limiting recoverable damages specific to the injury.

The timing discrepancy, with wrongful birth claims not being a thing until after the adoption of Kansas' constitution, also was noted by the court's judges.

Justice Caleb Stegall opined further, arguing the 1990 Arche decision, which recognized wrongful birth as a viable cause of action, should be overruled.

Chief Justice Marla Luckert and Justice Eric Rosen dissented, both taking some sort of issue over the technicality of timing for what civil actions are protected simply because they existed only after or when Kansas adopted its constitution. 

State Attorney General Derek Schmidt had stepped into this case to defend the 2013 law. He praised the court's decision.

“I am pleased we have successfully defended this important statute enacted by the Legislature," he said. "In Kansas, the birth of a child should be cause for celebration, not for the law to award damages because the child was 'wrongfully' born."