On appeal from the Superior Court of New Jersey, Law Division, Essex County.
King, Long and R.s. Cohen. The opinion of the court was delivered by King, P.J.A.D.
This case presents a claim for damages for extraordinary expenses for "wrongful life" or "wrongful birth" where the plaintiff's delivery occurred before the historic decision in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). The plaintiff, Judy Hummel, claims that the defendants departed from acceptable medical standards "by refusing to provide [her] with the treatment option of aborting her pregnancy."
The record seems clearly to demonstrate that the plaintiff, Judy Hummel, could have legally obtained a "therapeutic"
abortion because her health, indeed perhaps her life, was threatened by her complicated pregnancy in 1971. She alleges that her physician, defendant Dr. Reiss, and the hospital authorities decided that instead she should go to term and attempt to deliver the child. Judy Hummel survived the pregnancy and delivery with no complications and has made no claim for damages in her own right. This claim before us is advanced for the extraordinary expenses for the care of the child, Kelly Hummel, now age 19, who is severely crippled and deformed, over her lifetime.
We perceive the legal issue as whether the child, Kelly Hummel, has a cause of action for extraordinary expenses under Procanik by Procanik v. Cillo, 97 N.J. 339, 352, 478 A.2d 755 (1984), because her mother's physician in 1971 declined to advise her properly, declined to perform, or to obtain for her a eugenic abortion because of the likelihood that the fetus would be born with severe defects. We conclude that since any breach of duty here occurred pre- Roe v. Wade, the duty was to the mother alone. In 1971 the mother could obtain only a "therapeutic" abortion in this State. She had no right in New Jersey at that time to a eugenic abortion, one directed solely to eliminate a potentially defective fetus. Since the breach of duty, if any, to the mother to advise about or perform a therapeutic abortion caused her no damage, she did not make a claim in her own right. We thus conclude that the child now has no claim because the physician had no duty, indeed no right, in 1971 in this State to perform an abortion solely to eliminate a suspected defective fetus.
In Planned Parenthood of New York City v. New Jersey Dep't. of Institutions, 75 N.J. 49, 379 A.2d 841 (1977), our Supreme Court considered a claim of the retroactive application of Roe v. Wade for purposes of civil liability, there reimbursement from the State for the cost of 550 abortions performed before January 22, 1973. The Supreme Court's ruling on retroactivity was most explicit. The Court said:
The Appellate Division, after carefully considering all pertinent factors, rejected the claim that Roe v. Wade and Doe v. Bolton [410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973)] were entitled to retroactive application. [ Planned Parenthood of New York City v. New Jersey Dep't of Institutions ] 138 N.J. Super.  at 454-456 [351 A.2d 382 (1976)]. We agree with that finding essentially for the reasons stated by the Appellate Division.
We disagree with plaintiff's claim that prior to January 22, 1983 non-therapeutic abortions were lawful in New Jersey. Before that date, as plaintiff concedes in its Appellate Division brief, non-therapeutic abortions "were considered to be illegal." At that time the only abortions held lawful by the New Jersey courts were those performed to preserve a woman's life. State v. Moretti, 52 N.J. 182, 191 [244 A.2d 499] cert. den. 393 U.S. 952, 89 S. Ct. 376, 21 L. Ed. 2d 363 (1968); Gleitman v. Cosgrove, 49 N.J. 22 [227 A.2d 689] (1967). [75 N.J. at 52, 379 A.2d 841.]
We conclude that a physician had no duty to advise about or perform a eugenic abortion in New Jersey prior to Roe v. Wade. We also conclude that any duty arising in that respect after Roe v. Wade was not retroactive, for purposes of civil liability, to the date of that decision, January 22, 1973.*fn1 Any exception to or embellishment upon this express rule of non-retroactivity in civil cases announced in Planned Parenthood must be made by the Supreme Court.
We recite the pertinent factual and legal background for purposes of the understanding of our ruling. The plaintiff, Kelly Hummel, is a brain-damaged, multi-handicapped, 19 year old who brought this action in 1988 for damages for extraordinary expenses incurred during her lifetime under the theory of Procanik by Procanik v. Cillo, 97 N.J. 339, 352, 478 A.2d 755 (1984). Her mother's physician, Dr. Reiss, and the hospital, St. Michael's Hospital, a Roman Catholic institution, are the defendants. Judge Feinberg dismissed the complaint "for failure to state a claim" because at the time of ...