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S.L. couple files suit against wrongful-life litigation law
It protects doctors who may oppose abortion

A couple whose child was born with Down syndrome, despite prenatal tests showing the baby would be born healthy, are suing the doctor who conducted the genetic tests.

The lawsuit challenges the constitutionality of a 1983 Utah law providing protection from so-called wrongful life and wrongful birth lawsuits for doctors who misinterpret prenatal tests or don't inform parents of the risk of birth defects. The immunity was intended to protect doctors who oppose abortion.Thomas A. Schaffer, a Salt Lake attorney representing the couple, says the distinction is unfair.

"Why does this portion of the medical profession get protection when no one else does?" he asks. "Why do genetic counselors get more protection?"

In the lawsuit filed this month in 3rd District Court, Marie Wood and Terry Borman, a Salt Lake City husband and wife in their 40s, say prenatal tests performed at the University of Utah Medical Center produced false results, leading them to believe their child would be born healthy.

An ultrasound that could have helped detect genetic disorders was not made available, they say, and results of a serum-alpha-fetoproten blood test were downplayed by their physician, Dr. Raymond Doucette.

On Aug. 19, 1998, their daughter was born with Down syndrome.

The couple declined to be interviewed, but Schaffer said it is unclear if they would have opted for abortion.

"My clients may very well have decided to have the child anyway," he said. "But they would have been prepared for it and would have been able to think it through."

The suit seeks damages for both "wrongful birth" and "wrongful life." The first action refers to a medical malpractice claim by the parents, while the second is filed on behalf of the handicapped child.

Both issues have proved sticky for courts for more than 20 years, but courts have largely accepted wrongful birth claims. Wrongful life lawsuits, however, force plaintiffs to prove the child would have been better off never having been born.

Utah's statute is one of a handful extending statutory protection to doctors as part of a "right to life" policy passed by the 1983 Legislature.

"There are a lot of people who believe abortion is an abhorrent moral crime, so the purpose was to protect them from" being pressured to perform abortions, said Brigham Young University law professor Lynn Wardle, who helped create the law.

Jeff Botkin, a pediatrician and member of the LDS Hospital medical ethics board, is among the critics who say the law protects doctors who give negligent treatment or advice.

"Physicians should not be obligated to perform abortions or provide tests, but they do need to inform patients of what tests are available and to give them a referral," he said.

The law also raises constitutional questions in a country where abortion is legal. However, Wardle argues that the Supreme Court has upheld two laws similar to Utah's since 1993.

Advocates for the disabled worry prenatal screenings have made some people look at a Down syndrome baby as an avoidable mistake instead of a child full of love.

"I'm very glad my parents did not receive genetic information that might have led them to abort me," said Ron Gardner, legal director of Utah's Disability Law Center and one of three brothers who is blind. Gardner noted he was not speaking on behalf of the center.