Master New Hampshire recognized parents' wrongful birth claim while rejecting the child's wrongful life claim, defining duties, causation, damages, and limitations in prenatal malpractice. with this comprehensive case brief.
Smith v. Cote is a foundational New Hampshire Supreme Court decision that squarely addresses the torts of wrongful birth and wrongful life in the context of prenatal medical negligence. Against the backdrop of modern prenatal testing and the constitutional framework that, at the time, protected access to abortion, the court recognized a cognizable injury to parents who were deprived—through negligent medical advice or diagnosis—of an informed choice to avoid or terminate a pregnancy likely to result in the birth of a child with serious congenital impairments. At the same time, the court declined to recognize a wrongful life action by the child, emphasizing the conceptual and practical impossibility of valuing nonexistence against life with disabilities.
For law students, the case is significant because it articulates a careful balance of duty, causation, damages, and policy. It clarifies what parents must prove to establish wrongful birth, delineates recoverable damages (including extraordinary medical and educational expenses and emotional distress), rejects the ordinary childrearing-costs claim, and addresses statute-of-limitations accrual. Smith v. Cote thus becomes a touchstone in medical malpractice and reproductive autonomy jurisprudence, framing how courts mediate between professional accountability and profound questions about life, disability, and the role of tort law.
Smith v. Cote, 128 N.H. 231, 513 A.2d 341 (N.H. 1986)
The Smiths were expectant parents under the care of medical providers, including Cote, during pregnancy. The mother exhibited circumstances that should have prompted appropriate prenatal diagnosis or counseling regarding the risk of serious congenital defects (commonly litigated in connection with rubella or similar conditions). The defendants failed to exercise due care in testing, interpreting, and communicating material information concerning those risks. As a result, the parents were not advised—accurately or timely—of a substantial likelihood that the fetus would be born with significant impairments. The mother alleged that, had she been properly informed, she would have lawfully chosen to terminate the pregnancy. The child was born with severe congenital disabilities requiring extensive medical treatment, special education, and long-term supportive care. The parents sued for wrongful birth, seeking recovery of extraordinary expenses and emotional distress arising from being deprived of an informed reproductive choice. A separate claim—styled as wrongful life—was asserted on behalf of the child, seeking damages for being born with impairments rather than not being born at all.
1) Does New Hampshire recognize a cause of action for wrongful birth by parents based on negligent prenatal testing, diagnosis, or counseling that deprives them of an informed choice to avoid or terminate a pregnancy? 2) Does New Hampshire recognize a cause of action for wrongful life by the child born with impairments? 3) What damages are recoverable, and when does the statute of limitations accrue for a wrongful birth claim?
In New Hampshire, medical providers owe a duty to exercise reasonable care in prenatal testing, diagnosis, and counseling, including the duty to disclose material information necessary for expectant parents to make informed reproductive decisions. Parents may bring a wrongful birth action upon proving: (a) breach of the professional standard of care; (b) causation—that but for the negligence they would have avoided conception or terminated the pregnancy through lawful means; and (c) damages proximately caused by the deprivation of informed choice. Recoverable damages include extraordinary medical, educational, and custodial expenses attributable to the child's impairments (including reasonably certain post-majority expenses), and parents' compensable emotional distress consistent with New Hampshire tort principles. Ordinary child-rearing costs and a general claim that the birth of a child is a legal injury are not recoverable. New Hampshire rejects a child's wrongful life claim because the law cannot coherently measure damages by comparing life with disabilities to nonexistence. For limitations, a wrongful birth claim accrues no later than the child's birth (when the legally cognizable injury and resulting pecuniary loss materialize), subject to New Hampshire's discovery principles where applicable.
The New Hampshire Supreme Court recognized a cause of action for wrongful birth by the parents, allowed recovery of extraordinary expenses and emotional distress (but not ordinary childrearing costs), and rejected the child's wrongful life claim. The court held that the wrongful birth claim accrues no later than the child's birth, consistent with New Hampshire's discovery rule framework.
Duty and breach: The court grounded duty in established medical malpractice principles: physicians and related prenatal providers must use reasonable professional care and adequately inform patients of material risks revealed or reasonably discoverable through accepted testing and diagnosis. Given the foreseeability that negligent counseling may deprive parents of reproductive choice, the duty extends to prenatal risk assessment and communication. Causation: The core causal inquiry is whether, had the defendants met the standard of care, the parents would have lawfully avoided conception or terminated the pregnancy. The court required proof—by a preponderance of the evidence—that (i) accurate and timely information would have been provided, (ii) a lawful abortion or other avoidance measure would have been available at the relevant time, and (iii) the mother (and, as pertinent, the parents) would have chosen that course. This approach ties liability to the deprivation of informed choice, not to any claim that the impaired child's life is a cognizable injury. Damages: The court drew a principled line between recoverable and nonrecoverable damages. Ordinary childrearing costs are not compensable because tort law does not treat the birth of a child as an injury and because those costs are neither proximately caused by the negligence in the relevant sense nor amenable to fair calculation offset by the benefits of parenthood. By contrast, extraordinary, impairment-related expenses (medical care, therapies, specialized education, in-home assistance, and similar supports) are directly caused by the negligence because the parents were wrongfully deprived of the option to avoid those foreseeable burdens. Given the court's rejection of the child's wrongful life claim, it permitted parents to recover reasonably certain post-majority extraordinary expenses to avoid a remedial gap that would otherwise leave necessary lifetime care uncompensated. The court also permitted recovery for parents' emotional distress stemming from the deprivation of reproductive autonomy and the consequences of the child's impairments, consistent with New Hampshire's approach to genuine and foreseeable emotional harm in negligence. Wrongful life: The court declined to recognize the child's wrongful life claim on conceptual and practical grounds. Tort damages presuppose a comparison between the plaintiff's actual condition and a hypothetical condition absent the defendant's negligence. Here, that would require comparing life with disabilities to nonexistence, an inquiry the court found incapable of principled legal or economic valuation. Recognizing such a claim would force courts to make metaphysical judgments about the relative value of life and nonexistence—beyond the institutional competence of tort adjudication. Policy: Recognizing wrongful birth vindicates patients' rights to competent medical advice and informed reproductive choice without devaluing the lives of persons with disabilities. It holds professionals accountable within traditional negligence frameworks while avoiding speculative or morally fraught assessments characteristic of wrongful life. The court addressed floodgates and moral hazard concerns by limiting damages to objectively verifiable, impairment-related losses and by requiring robust proof of causation. Limitations and accrual: The court concluded that the wrongful birth cause of action accrues no later than the child's birth, when the injury—the imposition of extraordinary, impairment-related obligations and the concrete loss associated with the thwarted choice—first results in pecuniary loss. This is consistent with New Hampshire's discovery principles: where parents did not and could not reasonably discover the negligence or its consequences until birth, accrual aligns with that discovery point. Measuring from birth provides a predictable anchor for the limitations period, accommodates the reality that damages are not ascertainable until then, and prevents premature or speculative claims.
Smith v. Cote is a leading case on wrongful birth in New Hampshire and a frequently cited authority nationally. It provides a clear template for pleading and proving wrongful birth, identifies the proper scope of recoverable damages, rejects wrongful life on principled grounds, and clarifies accrual for limitations purposes. For law students, it illuminates how courts adapt traditional negligence concepts to evolving medical practices and sensitive ethical terrain, while emphasizing evidentiary rigor in causation and damages and careful policy line-drawing.
Wrongful birth is the parents' claim that negligent prenatal testing, diagnosis, or counseling deprived them of an informed choice to avoid or terminate a pregnancy likely to produce an impaired child. Wrongful life is the child's claim that being born impaired is itself a legally cognizable injury, which Smith v. Cote rejects. Wrongful conception (or wrongful pregnancy) involves the birth of a healthy but unplanned child due to negligent sterilization or contraception; damages there are typically limited and do not include ordinary childrearing costs in New Hampshire.
Parents must show by a preponderance of the evidence that: (1) the provider breached the professional standard by failing to conduct appropriate testing, interpret results, or disclose material information; (2) a lawful abortion or pregnancy-avoidance measure would have been available at the time proper information should have been provided; and (3) had they been properly informed, the mother would have chosen that course. Courts accept direct testimony from the parents, corroborated by contemporaneous evidence and surrounding circumstances.
Recoverable damages include extraordinary, impairment-related expenses (medical and therapeutic care, specialized equipment, special education, home modifications, respite and custodial care), reasonably certain to be incurred during the child's minority and, to avoid a remedial gap given the rejection of wrongful life, post-majority as well. Parents may also recover compensable emotional distress consistent with New Hampshire law. Ordinary childrearing costs are not recoverable.
The court found wrongful life inherently incapable of principled damage calculation because it requires comparing life with disabilities to nonexistence. Tort damages depend on a baseline of how the plaintiff would have fared absent negligence; nonexistence is not a condition that can be valued in legal or economic terms. Recognizing such claims would embroil courts in metaphysical judgments beyond tort law's competence.
Smith v. Cote holds that a wrongful birth claim accrues no later than the child's birth, when the legally cognizable injury and pecuniary loss materialize. This is consistent with New Hampshire's discovery principles; where parents could not reasonably discover negligence or its consequences until birth, accrual aligns with that point. Parties must then comply with the applicable medical malpractice limitations statute.
Causation in wrongful birth relies on the availability of a lawful abortion at the relevant time and proof the mother would have chosen it. In jurisdictions where abortion access has changed, plaintiffs must still prove that a lawful termination would have been available when proper information should have been provided. The viability of wrongful birth claims therefore turns on contemporaneous legal availability and proof of parental choice, which may vary by jurisdiction and time period.
Smith v. Cote carefully integrates traditional negligence doctrine with modern prenatal medicine and sensitive ethical concerns. By recognizing wrongful birth, it enforces professional duties to inform and empowers parents' reproductive autonomy while cabining damages to concrete, impairment-related losses and genuine emotional distress. By rejecting wrongful life, it avoids unworkable metaphysical comparisons and preserves the coherence of tort damages.
The decision remains a key reference for analyzing prenatal malpractice. It clarifies the elements and proof of causation, demarcates damages, addresses accrual, and articulates policy boundaries that many courts have followed. For students and practitioners, Smith v. Cote offers a structured framework to litigate, defend, and evaluate wrongful birth claims in a principled, analytically rigorous way.
Need to cite this case?
Generate a perfectly formatted Bluebook citation in seconds.
Use our Bluebook Citation Generator →