Wilson v. Kuenzi

Decision Date19 April 1988
Docket NumberNo. 69592,69592
Citation751 S.W.2d 741
PartiesRobert WILSON, et al., Plaintiffs-Appellants, v. Donald E. KUENZI, M.D., et al., Defendants-Respondents.
CourtMissouri Supreme Court
Concurring Opinion of Judge Blackmar
May 17, 1988.

Rehearing Denied May 17, 1988.

William T. Bernard, Kansas City, Mo., for appellants.

Harald L. Fridkin, Charles H. Stitt, Kansas City, Mo., for respondents.


This cause involves civil actions for damages for wrongful birth brought by Carl and Barbara Wilson on their own behalf and for wrongful life brought by Barbara Wilson as mother and next friend of Robert Wilson, a minor. The appeal is from an order of the Jackson County Circuit Court dated June 8, 1987, dismissing both causes of action pursuant to respondent's Motion To Dismiss filed April 14, 1987. The dismissal was based on the language of § 188.130, RSMo 1986, effective August 13, 1986, and appeal was to this Court because of the constitutional issues raised concerning the statute. Mo. Const. art. V, § 3. Although determination of this cause may not necessitate reaching the constitutional issues, we decide the cause because of its general interest and importance. Mo. Const. art. V, § 10. We affirm the action of the trial court dismissing the actions, but we do so for different reasons.

Prior to adoption of the statute in question, identical motions to dismiss had been filed and overruled on May 31, 1985.


Appellant Barbara Wilson was age 36 at the time of conception and age 37 at the time of the birth of Robert Wilson on June 23, 1983. Robert was born afflicted with a genetic disorder commonly known as Down's Syndrome. The risk of such birth defect is approximately 1 in 1000 for women in their twenties, and escalates to approximately 1 in 300 for a woman age 36. It is not disputed that such a defect can be detected by a test known as amniocentesis, administered in the fourteenth week of pregnancy or thereafter, and that respondent doctor neither told appellants of the availability of such test nor counseled appellants regarding the chances of the baby being born with such birth defect by reason of appellant mother's age. Appellants allege that the mother was therefore denied the ability to make an informed decision to abort the pregnancy, which she alleges she would have done, had she been advised of the fact that the fetus was afflicted with the disorder. The wrongful life action of the minor relies on the assumption that the mother would have aborted the fetus and that he would not have been born. Both causes of action allege that it was negligence of the respondent doctor to fail to advise the appellant mother of the availability of the amniocentesis test, or to order such test, and to counsel her as to the results of the test so that she could make an informed decision as to whether or not to have an abortion. For the purpose of these motions we assume that experts would testify that today a physician, following acceptable standards of practice in caring for a 36 year-old pregnant woman, should advise the mother of the availability of the test and counsel her accordingly, leaving the mother the responsibility of deciding whether or not she will abort the pregnancy.

The 1986 statute relied on by the circuit court reads as follows:

1. No person shall maintain a cause of action or receive an award of damages on behalf of himself or herself based on the claim that but for the negligent conduct of another, he or she would have been aborted.

2. No person shall maintain a cause of action or receive an award of damages based on the claim that but for the negligent conduct of another, a child would have been aborted.

Section 188.130, RSMo 1986.

Clearly Section 1 intends to preclude wrongful life actions and Section 2 intends to preclude wrongful birth actions.


Our reading of § 188.130, RSMo 1986 discloses no legislative intent on its face that the statute have retrospective application. In general, statutes are not applied retrospectively. The Missouri Constitution, Article 1, § 13, prohibits retrospective application of a statute unless there is clear legislative intent to give it retrospective operation either by express language or by implication, and the statute is procedural only and does not affect any substantive right of the parties. Pipe Fabricators, Inc. v. Dir. of Rev., 654 S.W.2d 74, 77 (Mo. banc 1983); Lincoln Credit Co. v. Peach, 636 S.W.2d 31, 34 (Mo. banc 1982); State ex rel. St. Louis-San Francisco Railway v. Buder, 515 S.W.2d 409, 410 (Mo. banc 1974). The effective date of the statute being August 13, 1986, the statute has no application to this case.


The question confronting the court is whether Missouri would have recognized these causes of action in 1983, some three years prior to adoption of the statute. This Court has not directly addressed either the action for wrongful birth or the action for wrongful life. Denying the motion for rehearing or transfer, we did permit a suit for "wrongful conception" to stand in Miller v. Duhart, 637 S.W.2d 183 (Mo.App.1982).

Most of the cases in this field have come down in the last two decades, primarily since Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and its partial legitimization of abortion. All of the cases can be found and are thoroughly discussed, in five law journal and law review articles published since 1980. 1

Although the two actions, wrongful life and wrongful birth, sound synonymous, they differ significantly. The wrongful life action is brought solely by or on behalf of the child who sues for damages stemming from the fact of his or her birth on the theory that were it not for the negligence of the defendant, he or she would not have been born. The action for wrongful birth is an action brought by one or both of the parents of a child born as the result of some form of negligence of the defendant. The damages generally alleged are for pain and suffering, emotional distress, loss of consortium, loss of wages, medical expenses and the cost of raising the child.

A The Wrongful Life Action

In a comprehensive article reviewing "The Defective Child and The Actions For Wrongful Life and Wrongful Birth," it was the conclusion of the author that "[t]o date, the wrongful life action has met with no success" and that "[t]he most common reason given is the difficulty, if not impossibility, of assessing damages." Trotzig, The Defective Child and the Actions for Wrongful Life and Wrongful Birth, 14 Fam.L.Q. 15, 40 (1980). A similar conclusion was reached by another author.

In summary, a historical review of wrongful life claims indicates that they have not been received favorably by the courts; seven of the eight jurisdictions that have considered wrongful life claims do not presently recognize their validity, and one jurisdiction remains unsettled. Dissatisfied life and unplanned life claims have been uniformly unsuccessful. The overwhelming majority of these decisions deny the claims because of conceptual difficulties in the calculation of damages created by the perceived necessity of comparing impaired life with nonexistence, based on considerations of the sanctity of all human life notwithstanding incidental defects. The few cases recognizing wrongful life claims have focused on the pain and suffering attributable to the defect, without convincingly rebutting the theoretical or philosophical problems attendant to the damage calculation.

Rogers, III, Wrongful Life and Wrongful Birth: Medical Malpractice In Genetic Counseling and Prenatal Testing, 33 S.C.L.Rev. 713, 729-30 (1982). (Footnotes omitted.)

We share the view of the overwhelming majority of courts and conclude that the trial court reached the correct result in dismissing the count for wrongful life brought by the mother as next friend of the child, even though the trial court may have done so for another reason.

B The Wrongful Birth Action

Plaintiff parents suing for wrongful birth have met with more and varied degrees of success. All courts permitting recovery have been presented with serious problems. Damages for pain and suffering of the parents have been rejected by the highest courts of New York, Becker v. Schwartz, 46 N.Y.2d 401, 413, 413 N.Y.S.2d 895, 901, 386 N.E.2d 807, 813 (1978) and Texas, Jacobs v. Theimer, 519 S.W.2d 846, 849 (Tex.1975), but have been allowed in New Jersey, Berman v. Allen, 80 N.J. 421, 404 A.2d 8, 14-15 (1979).

The some seventeen states 2 permitting recovery have justified their action on grounds such as 1) encouraging an attitude of reverence for human life; 2) holding parents responsible for the care of children they bring into society; 3) improving the quality of human existence; 4) protecting the procreative rights of individuals; 5) holding tortfeasors liable for damages proximately caused by their actions; and 6) encouraging competent medical care for all.

Collins, An Overview and Analysis: Prenatal Torts, Preconception Torts, Wrongful Life, Wrongful Death, and Wrongful Birth: Time for a New Framework, 22 J.Fam.L. 677, 695 (1983-1984). The cases have gone all over the place on damages. See Collins, supra at 696-700. Many of the damage discussions sound far more like discussion of public policy doctrine considerations rather than discussions of the traditional damage rules. Those who give lip service to the so-called benefit--offset rule, offsetting the benefit of having the child against traditional tort damages, put the parents in the position of having to prove that the child is neither wanted nor is of benefit to them if they are to recover substantial damages. This illustrates the potential damage that can be done to the already defective child and the near impossibility of dealing with the problem in terms of traditional tort-damage rules.

A reading of all of the cases persuades us that the real underlying problem in these cases stems from the fact that the courts have either closed...

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21 cases
  • Girdley v. Coats
    • United States
    • Missouri Supreme Court
    • February 25, 1992
    ...by parents of a child born with defects; and (3) "wrongful life"--a claim brought by the child suffering from such defects. Wilson v. Kuenzi, 751 S.W.2d 741, 743 (Mo. banc 1988), cert. denied, 488 U.S. 893, 109 S.Ct. 229, 102 L.Ed.2d 219 (1989), declines to recognize causes of action for wr......
  • Campbell v. US
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    • U.S. District Court — Northern District of Georgia
    • April 5, 1990
    ...Blake v. Cruz, 108 Idaho 253, 698 P.2d 315 (1984); Eisbrenner v. Stanley, 106 Mich.App. 357, 308 N.W.2d 209 (1981); Wilson v. Kuenzi, 751 S.W.2d 741 (Mo.), cert. denied, 488 U.S. 893, 109 S.Ct. 229, 102 L.Ed.2d 219 (1988); Smith v. Cote, 128 N.H. 231, 513 A.2d 341 (1986); Becker v. Schwartz......
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    • January 26, 1996
    ...wrongful birth cause of action. See Atlanta Obstetrics & Gynecology Group v. Abelson, 260 Ga. 711, 398 S.E.2d 557 (1990); Wilson v. Kuenzi, 751 S.W.2d 741 (Mo.1988); Azzolino v. Dingfelder, 315 N.C. 103, 337 S.E.2d 528 (1985). All three states rejected the tort for the same reason. They fou......
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    • Court of Special Appeals of Maryland
    • February 28, 2001
    ...551 N.E.2d 8 (1990); Strohmaier v. Associates in Obstetrics & Gynecology, P.C., 122 Mich.App. 116, 332 N.W.2d 432 (1982); Wilson v. Kuenzi, 751 S.W.2d 741 (Mo.1988); Greco v. United States, 111 Nev. 405, 893 P.2d 345 (1995); Azzolino v. Dingfelder, 315 N.C. 103, 337 S.E.2d 528 (1985); Smith......
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1 books & journal articles
  • What's Unconstitutional About Wrongful Life Claims? Ask Jane Roe ....
    • United States
    • Defense Counsel Journal Vol. 87 No. 3, July 2020
    • July 1, 2020
    ...432 (Mich. Ct. App. 1982), abrogated on other grounds by Taylor v. Kurapati, 600 N.W.2d 670 (Mich. Ct. App. 1999); Wilson v. Kuenzi, 751 S.W.2d 741 (Mo. 1988); Greco v. United States, 893 P.2d 345 (Nev. 1995); Smith v. Cote, 513 A.2d 341 (N.H. 1986); Becker, 386 N.E.2d 807 (N.Y. 1978); Azzo......

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