What's Law Got To Do With It?: Why We Should Mediate, Rather Than Litigate, Cases of Wrongful Life

Authors

Shawna Benston, Benjamin N. Cardozo School of Law

Abstract

In light of the legal and societal disfavor toward wrongful life suits, this Note examines the cultural, (bio)ethical, legal, and philosophical background of the wrongful life tort. While the disability rights movement and the pro-life strains of the abortion debate hope to silence proponents of wrongful life suits, the evolution of a legal right to die underscores the importance of autonomy and privacy for the individual. Philosophical exploration of prospective children-including the nonidentity problem, claim-rights and corresponding duties, and the subjunctive-threshold notion of harmhelps explain the confusion and moral conundrum that pervade the very notion of "wrongful life" and that render any clear-cut legal solution nearly impossible. This Note proposes mediation as a mode of dispute resolution preferable to litigation, or the lack thereof, for responding to genetically disabled children's allegations of "wrongful life" against their parents' physicians. By providing procedural justice, therapeutic jurisprudence, and a participatory approach to problem-solving, mediation can grant genetically disabled children a voice and, by extension, catharsis, regardless of monetary outcome.

Disciplines

Criminal Law | Criminal Procedure | Dispute Resolution and Arbitration | Law | Medical Jurisprudence | Sexuality and the Law | Torts

Recommended Citation

Shawna Benston, What's Law Got To Do With It?: Why We Should Mediate, Rather Than Litigate, Cases of Wrongful Life, 15 Cardozo J. Conflict Resol. 243 (2013).
Available at: https://larc.cardozo.yu.edu/cjcr/vol15/iss1/11