Wilson v. Kuenzi

751 S.W.2d 741, 1988 WL 56214
CourtSupreme Court of Missouri
DecidedMay 17, 1988
Docket69592
StatusPublished
Cited by38 cases

This text of 751 S.W.2d 741 (Wilson v. Kuenzi) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilson v. Kuenzi, 751 S.W.2d 741, 1988 WL 56214 (Mo. 1988).

Opinions

WELLIVER, Judge.

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.

I

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 bom afflicted with a [742]*742genetic 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 bom. 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.

II

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.

III

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

[743]*743Although 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 bom. The action for wrongful birth is an action brought by one or both of the parents of a child bom 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.

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Bluebook (online)
751 S.W.2d 741, 1988 WL 56214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-kuenzi-mo-1988.