Posted on December 9, 2006

The Evils of Disability Advocates

Wrongful birth and life suits, in the context of disabilities, are brought when a doctor’s negligence causes a child to be born with disabilities. The plaintiff seeks damages for the resulting increase in hardship and financial burden over the course of the child’s life.

Disability rights advocates often oppose these suits on the ground that they imply something “wrong” with being disabled. The argument goes that, since there is nothing wrong with being, say, deaf, only something different (i.e., “differently-abled”), damages shouldn’t be levied since no injury has occurred. The attitude behind the argument can be clarified by analogizing to race. Imagine that a doctor’s negligence somehow resulted in a white couple giving birth to a black baby. We’d be aghast if a court awarded them damages because being black was seen as a harmful disability. Since deafness, blindness, or Downs Syndrome are just different from a societally constructed norm, they’re no more injurious than dark skin.

In order to protect the disabled community from the institutionalization of this prejudice, organizations lobby legislatures to statutorily prohibit wrongful life and birth suits.

Few policy arguments could be more self-serving, irrational, or morally bankrupt, however A person of color is able, physically and mentally, to do anything a white person is capable of. But a blind child has severe limitations that will clearly make is life more difficult. Why should that child, or his parents, be statutorily barred from recovering damages for that difficulty—which often takes the form of significant expenses such as special schooling, full time care, modifications to the home, etc.—if it was the result not of mere natural happenstance but a doctor’s negligence?

Likewise, if it is true that disabilities are such a grand affliction as to warrant a statutory prohibition on resulting wrongful birth and life suits, why shouldn’t a parent be allowed to grace her child with the gift of deafness by taking an awl to his eardrum on the kid’s fifth birthday?

What’s clear but never explicitly admitted is that disabled advocates actually agree with the above criticism. To demonstrate how, one need only turn to the Americans with Disabilities Act. If a wrongful birth/life suit is brought to recover damages from an undue burden, the argument against it must be that disabilities are not burdensome. But if this is the case, why does the ADA exist in the first place. Why does it force businesses and government to expend significant sums to reduce the burden disabled people face when using goods and services? If the existing burden is zero, it is silly to have laws requiring costly reductions. But if it isn’t zero, then the argument that doctors shouldn’t be held liable for creating that burden makes no sense. In lobbying for legislation like the ADA, disability advocates are forced to acknowledge the significant hardships facing disabled people—hardships that ought to be compensated if they are the product of negligence.

Of course, the best way to deal with these issues is to leave them up to individuals. No disabled person is forced into court, compelled by a government agency against his will to file a wrongful life suit. Children and parents choose to do this because they have experienced first hand the difficulties inherent in disability. If a particular disability rights activist finds no burden, he can chose not to sue. But to deprive others of that right causes far more damage than the occasional bad feeling when a court recognizes that life with a disability can be hard.