Pregnant Sticky NoteJack and Jill live on a hill, in a comfortable 3 bedroom house with their two children.  The happy couple have decided that they do not want more children because of the high cost of raising them.  (Jack has been unemployed for several years after a nasty tumble down the hill which resulted in a severe head injury.)  Rather than risk an unwanted pregnancy, Jack goes to the doctor and has a vasectomy performed.  Despite Jack’s uncomfortable procedure, Jill gets pregnant two months later and eventually has another healthy child.  Can Jack and Jill sue their doctor for the cost of raising the child and fetch a big pail of money?

As you might expect, when confronted with such an emotionally, ethically, morally and religiously-charged issue, courts around the United States have adopted very different damage models.  The four generally accepted models are the:

  • no-recovery rule;
  • full-recovery rule;
  • benefits rule; and
  • limited recovery rule.

The first two rules are self-explanatory.  The benefits rule allows for recovery of the expenses of education and maintenance offset by the “benefit” to the parent of having the child.  The limited recovery rule, which is the law in a majority of states, including Texas, would permit Jack and Jill to bring a malpractice claim for wrongful pregnancy/conception following the failed vasectomy procedure, but would limit the recovery to certain elements of damage (e.g. actual medical expenses incurred as a result of the failed procedure).  Exactly which elements of damage will be recoverable is a question still being debated among the Texas courts.

NOTE: A cause of action for wrongful pregnancy/wrongful conception should not be confused with a cause of action for wrongful birth or wrongful life.  Wrongful birth is a cause of action brought by the parents of a congenitally diseased child claiming that the doctor failed to properly warn them of the risk or existence of an abnormality and, therefore, the parents were prevented from making an informed decision.  A wrongful life claim is brought by a severely disabled child for failing to prevent the child’s birth.