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Michelman v. Ehrlich

May 06, 1998


Before Judges Keefe, P.g. Levy and Wecker.

The opinion of the court was delivered by: Keefe, J.A.D.

[9]    Argued March 17, 1998

On appeal from the Superior Court of New Jersey, Law Division, Essex County.

The issue to be decided is whether plaintiff, Stanley Michelman, may bring an action for his grandson's "wrongful birth."

This case involves a tragic incident in which plaintiff's grandson, Evan Ungerleider, was born afflicted with Tay-Sachs disease, a neurological disease that prevents the development of motor skills and is eventually fatal. *fn1 In a separate action from the one now before this court, Evan, along with his parents, Jeff and Shari Ungerleider, have filed both "wrongful life" and "wrongful birth" causes of action, respectively, against defendants Paul Ehrlich, Ehrlich & Goldfarb, P.A., Roche Biomedical Laboratories, and Mayo Medical Laboratories (collectively, "the defendants"). *fn2 As of the filing of this appeal, that cause of action is pending in the Law Division.

Plaintiff's complaint, naming the same defendants, mirrors the parents' claim that defendants were negligent in failing to inform Shari Ungerleider of abnormalities in the fetus. Plaintiff seeks to be compensated for defendants' negligence because he "has suffered and will continue to suffer severe emotional pain . . . due to his grandson Evan's crippling and fatal affliction." Recognizing that a grandparent does not have a cognizable cause of action for "wrongful birth" under New Jersey law, plaintiff argued in the Law Division that a cause of action for "wrongful birth" in favor of a grandparent is a logical extension of extant Supreme Court precedent. On defendants' motion, judge Winard dismissed plaintiff's complaint for failure to state a claim upon which relief can be granted. R. 4:6-2.

Plaintiff now appeals from that judgment. Conceding as he did before the Law Division that New Jersey law, as it now stands, does not provide a grandparent with a cognizable cause of action for "wrongful birth," plaintiff urges this court to "advance the frontier of family torts." Plaintiff argues that a grandparent is a "filament of family life," and the injury suffered by Evan affects the entire family unit; therefore, plaintiff contends that he should be able to bring an action against the defendants for the emotional damages he has suffered.

We affirm the decision of the Law Division and conclude that extension of the cause of action for "wrongful birth" in favor of a grandparent is inconsistent with our tort law and contrary to the principles undergirding that cause of action.


The concepts of "wrongful birth" and "wrongful life" are of recent vintage in our law. These actions generally arise where a doctor fails to diagnose or inform the parents that the child might be born with abnormalities in time to permit the parents to make the decision whether to terminate the pregnancy. See Prosser and Keeton on Torts 370 (5th ed. 1984). While most jurisdictions allow parents to recover under a "wrongful birth" theory, a child's action for "wrongful life" has not been met with favor. Id. at 372; see generally Gregory Sarno, Annotation, Recoverability of Compensatory Damages for Mental Anguish or Emotional Distress for Tortiously Causing Another's Birth, 74 A.L.R.4th 798 (1989 and 1997 Supp.); Gregory Sarno, Annotation, Tort Liability for Wrongfully Causing One to Be Born, 83 A.L.R.3d 15 (1978 and 1997 Supp.).

In the first New Jersey case to address the issue of "wrongful birth," the Supreme Court rejected the claim, explaining that the "public policy supporting the preciousness of human life" and the impossibility of measuring the damages of becoming parents of a defective child outweighed any countervailing interest the parents might have to emotional and monetary injuries. Gleitman v. Cosgove, 49 N.J. 22, 29-31 (1967). The Court also rejected any claim for "wrongful life" on behalf of the infant, reasoning that the "Court cannot weigh the value of life with impairments against the nonexistence of life itself." Id. at 28.

In 1973, the Supreme Court of the United States decided Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L.Ed.2d 147 (1973), recognizing a woman's constitutional right to terminate her pregnancy. That decision determined that a woman, at least during the first trimester of pregnancy, has a privacy right to abort the fetus without state interference. Recognizing the "changes in the law which have occurred in the 12 years since Gleitman," and the impact the decision in Roe v. Wade had on the rationale of Gleitman, the New Jersey Supreme Court in Berman v. Allen, 80 N.J. 421 (1979) overruled Gleitman and held that "wrongful birth" is a cognizable cause of action in New Jersey.

In Berman, the parents of an infant born with Down's Syndrome brought a cause of action individually, as well as on behalf of the child as her guardians ad litem, against doctors who allegedly failed to inform Mrs. Berman of the procedure known as amniocentesis. Id. at 424. The complaint alleged that if Mrs. Berman had been informed about the procedure, she would have had the test, discovered that the child, if born, would be afflicted with Down's Syndrome, and would have aborted the fetus. Id. at 425.

First, the Court rejected the infant's "wrongful life" claim. Basing its decision on grounds similar to Gleitman, the Court held that public policy mandates that the sanctity of human life, even if in an impaired state, be preferred over nonexistence. Thus, a claim stating that the infant "would be better off had ...

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