For affirmance -- Justices Francis, Proctor, Hall Haneman. For reversal in part -- Chief Justice Weintraub. For reversal -- Justices Jacobs and Schettino. The opinion of the court was delivered by Proctor, J. Francis, J. (concurring). Jacobs, J. (dissenting). Justice Schettino agrees with this dissent and joins me in voting to reverse the dismissal of the complaint and to remand the matter for trial. Weintraub, C.J. (dissenting in part).
This is a malpractice suit for money damages. The trial judge dismissed the complaint of the infant plaintiff at the close of plaintiffs' case, and dismissed the complaints of his father and mother after all the evidence was heard. The appeal was certified to this Court on its own motion pursuant to R.R. 1:10-1(a) prior to argument in the Appellate Division.
The first count of the complaint is on behalf of Jeffrey Gleitman, an infant, for his birth defects. The second count is by his mother, Sandra Gleitman, for the effects on her emotional state caused by her son's condition. And the third count is by his father, Irwin Gleitman, for the costs incurred in caring for Jeffrey. Defendants, Robert Cosgrove, Jr. and Jerome Dolan, are physicians specializing in obstetrics and gynecology engaged together in the practice of medicine in Jersey City.
Sandra Gleitman consulted defendants on April 20, 1959. She was examined by Dr. Robert Cosgrove, Jr. and found by him to be two months pregnant. She informed him that on or about March 20, 1959 she had had an illness diagnosed as German measles. Mrs. Gleitman testified that Dr. Cosgrove, on receipt of this information and on inquiry by her, told her that the German measles would have no effect at all on her child.
For the next three months Mrs. Gleitman received her prenatal medical care from the army doctors at Fort Gordon, Georgia where her husband was stationed. She informed the army doctors about the German measles she had had in her early pregnancy, and they instructed her to ask her regular physician about this when she returned home.
She next consulted defendants in July at which time she saw Dr. Dolan. Mrs. Gleitman testified that she repeated her inquiry about the effects of German measles and again received a reassuring answer. These inquiries and answers occurred on each of her subsequent monthly visits.
On November 25, 1959 Mrs. Gleitman was delivered of a boy, Jeffrey, at the Margaret Hague Maternity Hospital in Jersey City. Although at first the baby seemed normal, a few weeks later the substantial defects which Jeffrey has in sight, hearing, and speech began to become apparent. He has had several operations which have given him some visual capacity, and he attends a special correctional institute for blind and deaf children. His physical condition, which is seriously impaired, is not in dispute on this appeal.
Plaintiffs' medical expert, Dr. Louis Fraulo, gave his opinion that Jeffrey's condition was causally related to the viral disease of German measles which Mrs. Gleitman had in March. Dr. Fraulo testified that women who have German measles in the first trimester of their pregnancy will produce infants with birth defects in 20 to 50 per cent of the cases. Dr. Fraulo further stated that a physician who finds pregnancy and is given a history of German measles occurring during the term of pregnancy should inform his female patient of the likelihood of birth defects. In answer to a hypothetical question based on Mrs. Gleitman's testimony, Dr. Fraulo stated that defendants had deviated from generally accepted medical standards by not informing their pregnant patient of the likelihood of birth defects. A patient so informed, Dr. Fraulo testified, could then decide whether to bear the baby or have the pregnancy terminated by an abortion.
Dr. Robert Cosgrove, Jr. agreed that Mrs. Gleitman had consulted him for her pregnancy on April 20, 1959 and had thereafter been the patient of Dr. Dolan and himself until November 25, 1959 when Jeffrey was born. He further agreed that the history given him had included the illness of German measles in March, and acknowledged that his duty as a physician required him to inform his patient of the possibility of birth defects. He testified, however, that in the presence of Dr. Samuel Cosgrove, since deceased, and a woman who appeared to be the mother of Mrs. Gleitman, he told his patient of a 20 per cent chance her baby would have some defect. He
also stated that he informed her that some doctors would recommend and perform an abortion for this reason, but that he did not think it proper to destroy four healthy babies because the fifth one would have some defect.
Dr. Dolan testified that Mrs. Gleitman, whom he first saw in July when in any event it was too far along in the pregnancy for a medically safe abortion, had never asked him about the effects of German measles, and that he had never mentioned these effects to her. Dr. Dolan, as well as Dr. Edward C. Waters, who was called as an expert for defendants, agreed that a physician had the duty of informing his patient as to the likelihood of birth defects which they both estimated would occur in some 20 to 25 per cent of the cases where a female has German measles in the first trimester of her pregnancy.
The theory of plaintiffs' suit is that defendants negligently failed to inform Mrs. Gleitman, their patient, of the effects which German measles might have upon the infant then in gestation. Had the mother been so informed, plaintiffs assert, she might have obtained other medical advice with a view to the obtaining of an abortion. Plaintiffs do not assert that Mrs. Gleitman's life or health was in jeopardy during the term of her pregnancy.
As noted above the trial judge dismissed the three counts without submitting any of them to the jury. The claim of infant plaintiff was dismissed for failure to show that acts of the defendants were the proximate cause of Jeffrey's condition, and the claims by his mother and father were dismissed because the trial judge believed the suggested abortion would be criminal in New Jersey under N.J.S. 2A:87-1.
Because the complaint was dismissed on motion for judgment by defendants, the testimony on behalf of plaintiffs together with all reasonable inferences therefrom will be assumed to be true. The motion for judgment of dismissal concedes for purposes of the motion the truth of plaintiffs' evidence. Melone v. Jersey Central Power & Light Co., 18 N.J. 163, 170 (1955). Specifically, on this appeal we must take it
to be the fact that Dr. Cosgrove, Jr. affirmatively misled Mrs. Gleitman on April 20, 1959 by telling her that the German measles she had in March would have no effect at all on her child then in gestation (despite the conflict in the evidence on this point).
For our discussion of this case we will assume that somehow or somewhere Mrs. Gleitman could have obtained an abortion that would not have subjected participants to criminal sanctions, and that she did not do so because she relied on the incorrect advice of the defendants.
At the outset it must be clearly understood that there is no suggestion by plaintiffs that defendants could have ordered any therapy -- whether surgery, drugs or otherwise -- which would have decreased the possibility that the infant then in gestation would be born with birth defects. The present case is sharply different from those cases where a deviation from standard medical practice affects the chances that an infant will be born with birth defects. In Sylvia v. Gobeille, R.I., 220 A. 2 d 222 (Sup. Ct. 1966), plaintiff alleged that defendant physician should have given her mother gamma globulin when the mother consulted him for German measles which she had while pregnant. It was alleged that this therapy would have decreased the likelihood that plaintiff would be born with physical defects. In the present case there is no allegation that gamma globulin or any other therapy might have helped.*fn1
The right of an infant to sue for prenatal torts was established in this State by Smith v. Brennan, 31 N.J. 353 (1960), where a child in gestation received injuries when his mother was in an automobile accident:
"The semantic argument whether an unborn child is 'a person in being' seems to us to be beside the point. There is no question that conception sets in motion biological processes which if undisturbed
will produce what every one will concede to be a person in being. If in the meanwhile these processes can be disrupted resulting in harm to the child when born, it is immaterial whether before birth the child is considered a person in being. And regardless of analogies to other areas of the law, justice requires that the principle be recognized that a child has a legal right to begin life with a sound mind and body." Id., 31 N.J., at p. 364.
An essential part of the cause for action set forth in Smith v. Brennan is the "disruption" or proximate cause of injury by act of commission or omission which results in impairment to what otherwise would be a normal healthy child. In the present case there is no contention that anything the defendants could have done would have decreased the likelihood that the infant would be born with defects. The conduct of defendants was not the cause of infant plaintiff's condition.
The infant plaintiff is therefore required to say not that he should have been born without defects but that he should not have been born at all. In the language of tort law he says: but for the negligence of defendants, he would not have been born to suffer with an impaired body. In other words, he claims that the conduct of defendants prevented his mother from obtaining an abortion which would have terminated his existence, and that his very life is "wrongful."
The normal measure of damages in tort actions is compensatory. Damages are measured by comparing the condition plaintiff would have been in, had the defendants not been negligent, with plaintiff's impaired condition as a result of the negligence. The infant plaintiff would have us measure the difference between his life with defects against the utter void of nonexistence, but it is impossible to make such a determination. This Court cannot weigh the value of life with impairments against the nonexistence of life itself. By asserting that he should not have been born, the infant plaintiff makes it logically impossible for a court to measure his alleged damages because of the impossibility of making the comparison required by compensatory remedies. As a recent commentator put the matter:
"[N]o comparison is possible since were it not for the act of birth the infant would not exist. By his cause of action, the plaintiff cuts from under himself the ground upon which he needs to rely in order to prove his damage." Tedeschi, "On Tort Liability for 'Wrongful Life'," 1 Israel L. Rev. 513, 529 (1966).
The two cases from other states which have considered the theory of action for "wrongful life" were brought by illegitimate children for damages caused by their birth out of wedlock, and in both cases policy reasons were found to deny recovery. Zepeda v. Zepeda, 41 Ill. App. 2 d 240, 190 N.E. 2 d 849 (App. Ct. 1963), cert. denied 379 U.S. 945, 85 S. Ct. 444, 13 L. Ed. 2 d 545 (1964), and Williams v. State of New York, 18 N.Y. 2 d 481, 276 N.Y.S. 2 d 885, 223 N.E. 2 d 343 (Ct. App. 1966).
We hold that the first count of the complaint on behalf of Jeffrey Gleitman is not actionable because the conduct complained of, even if true, does not give rise to damages cognizable at law.
The mother and father stand in a somewhat different position from the infant. They are equally subject to the factual circumstance that no act by the defendants could have decreased the likelihood that the infant would be defective. However, Mrs. Gleitman can say that an abortion would have freed her of the emotional problems caused by the raising of a child with birth defects; and Mr. Gleitman can assert that it would have been less expensive for him to abort rather than raise the child.
A considerable problem is raised by the claim of injury to the parents. In order to determine their compensatory damages a court would have to evaluate the denial to them of the intangible, unmeasurable, and complex human benefits of motherhood and fatherhood and weigh these against the alleged emotional and money injuries. Such a proposed weighing is similar to that which we have found impossible to perform for the infant plaintiff. When the parents say their child should not have been born, they make it impossible
for a court to measure their damages in being the mother and father of a defective child.
Denial of the claim for damages by adult plaintiffs is also required by a close look at exactly what it is they are here seeking. The thrust of their complaint is that they were denied the opportunity to terminate the life of their child while he was an embryo. Even under our assumption that an abortion could have been obtained without making its participants liable to criminal sanctions, substantial policy reasons prevent this Court from allowing tort damages for the denial of the opportunity to take an embryonic life.
It is basic to the human condition to seek life and hold on to it however heavily burdened. If Jeffrey could have been asked as to whether his life should be snuffed out before his full term of gestation could run its course, our felt intuition of human nature tells us he would almost surely choose life with defects as against no life at all. "For the living there is hope, but for the dead there is none." Theocritus. See Ryan (M.D.), "Humane Abortion Laws and the Health Needs of Society," 17 West. Res. L. Rev. 424, 428-430 (1965); and for a recent statement on "the rights of the fetus" see Conniff, "The World of the Unborn," The New York Times, January 8, 1967, § 6 (Magazine), pp. 97-98.
The right to life is inalienable in our society. A court cannot say what defects should prevent an embryo from being allowed life such that denial of the opportunity to terminate the existence of a defective child in embryo can support a cause for action. Examples of famous persons who have had great achievement despite physical defects come readily to mind, and many of us can think of examples close to home. A child need not be perfect to have a worthwhile life.
We are not faced here with the necessity of balancing the mother's life against that of her child. The sanctity of the single human life is the decisive factor in this suit in tort. Eugenic considerations are not controlling. We are not talking here about the breeding of prize cattle. It may have been
easier for the mother and less expensive for the father to have terminated the life of their child while he was an embryo, but these alleged detriments cannot stand against the preciousness of the single human life to support a remedy in tort. Cf. Jonathan Swift, "A Modest Proposal" in Gulliver's Travels and Other Writings, 488-496 (Modern Library ed. 1958).
Though we sympathize with the unfortunate situation in which these parents find themselves, we firmly believe the right of their child to live is greater than and precludes their right not to endure emotional and financial injury. We hold therefore that the second and third counts of the complaint are not actionable because the conduct complained of, even if true, does not give rise to damages cognizable at law; and even if such alleged damages were cognizable, a claim for them would be precluded by the countervailing public policy supporting the preciousness of human life.
In the view we have taken of the case we need not consider whether the abortion which plaintiffs were denied the opportunity to obtain would have been illegal. Our statute provides criminal sanctions for abortions which are performed "without lawful justification." N.J.S. 2A:87-1 and see N.J.S. 2A:170-76. The only justification so far held lawful by our courts is preservation of the mother's life. State v. Shapiro, 89 N.J.L. 319 (E. & A. 1916); State v. Brandenburg, 137 N.J.L. 124 (Sup. Ct. 1948). It may well be that when a physician performs an abortion because of a good faith determination in accordance with accepted medical standards that an abortion is medically indicated, the physician has acted with lawful justification within the meaning of our statute and has not committed a crime. See § 207.11 Model Penal Code, comment 4, 153-154 (Tent. Draft No. 9 1959), and cf. Sanitary Vendors, Inc. v. Byrne, 40 N.J. 157 (1963).
For the foregoing reasons the judgment of the trial court dismissing the three counts of the complaint is affirmed.
FRANCIS, J. (concurring). I concur in the opinion of Justice Proctor, except that I prefer to deal more specifically with the problem of criminality of a eugenic abortion of the type involved in this case.
It may be noted that the dismissal of the suit as to the adult plaintiffs in the trial court did not take place at the close of the plaintiffs' proof. The factual defense was presented, and thereafter defendants' motion to dismiss was granted. Thus on one side of the controversy we have Mrs. Gleitman's assertion (1) that she told Dr. Cosgrove of her experience with German measles (rubella) when she first consulted him about her pregnancy, (2) that she inquired of Dr. Cosgrove on that occasion and thereafter whether her child would be defective as a result of the disease, and (3) that he and later Dr. Dolan assured her there was nothing to be concerned about, the child would not be affected. On the other side, we have Dr. Cosgrove's testimony that when Mrs. Gleitman informed him of the rubella, he advised her that the incidence of damage to babies of mothers who had the disease in the early stages of their pregnancy was about 20%. He said also that he told her there were places where abortions were performed for that reason, but that he did not consider it proper to handle obstetrics cases in that way; he did not think that in order to eliminate one baby who might be deformed, the destruction of four more babies who might be perfectly normal was "a very reasonable way to conduct the practice of medicine." Not only did he make it plain that he would not do such an abortion, but he also testified that in his view the operation would be criminal in New Jersey and in every other state as well.
On this appeal, as Justice Proctor pointed out, the issue of credibility between Mrs. Gleitman and the doctors is not before us. The defense version of the affair is mentioned primarily because of its bearing on another aspect of the case to be discussed hereafter. The narrow question presented to this Court for decision is: assuming the truth of Mrs. Gleitman's testimony, does the law recognize a cause of action against a
doctor who fails to tell a pregnant wife who has had rubella in the first trimester of her pregnancy that her child may be defective, and who fails to tell her she may elect to have an abortion performed by him under proper auspices or, if he will not do so, by another physician who is not opposed to the operation, or in some other state or country where such operations are sanctioned. If there is such a legally cognizable claim against the doctor, then the trial court's judgment must be reversed and the case remanded for trial by a jury which will resolve the matter of credibility between the disputants.
Under the existing statute, N.J.S. 2 A:87-1, it is a crime to commit an abortion "without lawful justification." Plaintiff Mrs. Gleitman contends that contraction of German measles during the first trimester of her pregnancy constituted lawful justification for the destruction of her child in this State by a New Jersey doctor. She claims further that even if this type abortion is criminal in this State, it was malpractice for Doctors Cosgrove and Dolan not to advise her that as a result of the rubella her child might be defective and that in such cases it is or may be possible in some states or countries to obtain an abortion. Resolution of these problems requires a study of the background of our abortion law.
The statutory crime of abortion had its origin in 1849. See L. 1849, p. 266, which became effective on March 1, 1849. The act said:
"That if any person or persons, maliciously or without lawful justification, with intent to cause and procure the miscarriage of a woman then pregnant with child, shall administer to her, prescribe for her, or advise or direct her to take or swallow any poison, drug, medicine, or noxious thing; and if any person or persons maliciously, and without lawful justification, shall use any instrument, or means whatever, with the like intent * * * shall, on conviction thereof, be adjudged guilty of a high misdemeanor; and if the woman die in consequence thereof, shall be punishable by fine, not exceeding one thousand dollars, or imprisonment at hard labour for any term not exceeding fifteen years, or both; and if the woman doth not die in consequence thereof, such offender shall, on conviction thereof, be adjudged guilty of a misdemeanor,
and be punished by fine, not exceeding five hundred dollars, or imprisonment at hard labour, for any term not ...