The plaintiffs, expectant parents, were under the care of defendant physicians during pregnancy. The mother was in an age group that materially increased the risk of having a baby with Down syndrome (then commonly detectable through amniocentesis by approximately the second trimester). Despite the materiality of that risk and the availability of prenatal diagnostic testing, the physicians failed to advise the parents about amniocentesis, or otherwise failed to provide adequate information enabling an informed decision about testing. The child was born with Down syndrome. The parents alleged that, had they been properly informed and offered amniocentesis, they would have undergone the test, learned of the chromosomal anomaly, and lawfully terminated the pregnancy. They sued the physicians for negligence and lack of informed consent, asserting a parental claim for wrongful birth (seeking emotional distress damages and pecuniary losses) and, on behalf of the child, a claim for wrongful life (seeking damages for being born with impairments rather than not being born at all).
1) Does New Jersey recognize a parental cause of action for wrongful birth against physicians who negligently fail to inform expectant parents of available prenatal testing that would have revealed fetal abnormalities and enabled a lawful abortion? 2) Does New Jersey recognize a child's cause of action for wrongful life premised on the theory that, but for the physician's negligence, the child would not have been born to suffer life with impairments?
Under New Jersey law, physicians owe patients a duty of reasonable care that includes the duty to disclose material medical information necessary for informed decision-making, including the availability of prenatal diagnostic tests when risk factors (such as maternal age) make such testing material to a patient's reproductive choices. Parents may bring a wrongful birth action when a physician's breach proximately causes the loss of the parents' opportunity to avoid or terminate a pregnancy. However, New Jersey does not recognize a child's wrongful life claim because the law cannot coherently measure damages by comparing impaired life to nonexistence. Damages for wrongful birth are limited to those proximately caused by the deprivation of informed choice, typically including emotional distress and pecuniary losses attributable to the child's impairment (but not ordinary child-rearing costs).
The Supreme Court of New Jersey recognized the parents' wrongful birth claim predicated on the physicians' negligent failure to advise about amniocentesis and its implications, and allowed recovery of damages for emotional distress and pecuniary losses attributable to the child's condition. The court rejected the child's wrongful life claim, holding that New Jersey does not recognize such an action because damages are not legally cognizable when the comparator is nonexistence.
Duty and breach: The court grounded the parents' claim in conventional negligence and informed consent principles. Given the mother's age and the material risk of chromosomal anomalies, a reasonable physician had a duty to inform the parents of the availability, purpose, and material risks of amniocentesis. That information was essential to an informed choice about whether to test and, in turn, whether to continue the pregnancy. Failure to provide this disclosure constituted a breach of the duty of care. Causation: The relevant injury to the parents is not the birth itself but the loss of the opportunity to make an informed reproductive choice—specifically, to terminate the pregnancy if the test confirmed Down syndrome. The court explained that proximate cause in wrongful birth asks whether, had the parents been properly informed, they would have undergone testing and elected a lawful abortion upon receiving adverse results. In an era post-Roe v. Wade, the availability of lawful abortion made the loss of this choice a cognizable, foreseeable harm. Damages for parents: The court allowed recovery of emotional distress resulting from the deprivation of informed choice and the consequent birth of a child with significant disabilities. It also allowed recovery of pecuniary expenses proximately attributable to the impairment—such as extraordinary medical, educational, and custodial costs—while excluding ordinary costs of child-rearing unrelated to the disability. The court declined to apply an offset for the intangible "benefits" of parenthood against the parents' noneconomic damages, reasoning that such balancing is speculative and inappropriate in this context. Wrongful life rejected: By contrast, the court refused to recognize the child's wrongful life claim. It emphasized that tort law evaluates damages by comparing a plaintiff's actual condition with the condition that would have existed absent the defendant's negligence. For the child's claim, the comparator would be nonexistence, which the court found impossible to quantify or compare to life with impairments without engaging in untenable metaphysical judgments. Because the legal system lacks a coherent metric for such a comparison, the court concluded the child's claim must fail as a matter of law. Policy: Recognizing wrongful birth encourages adherence to professional standards of disclosure and safeguards patient autonomy. At the same time, limiting recovery to the parents and restricting damages to those proximately caused avoids inviting courts to make value judgments about whether nonexistence is preferable to impaired life. The damages framework also cabins liability to foreseeable, measurable harms while aligning with the purposes of informed consent doctrine.
Berman v. Allan is a foundational wrongful birth case that many jurisdictions have cited when delineating the physician's duty to disclose prenatal testing options and when distinguishing between wrongful birth and wrongful life. It integrates informed consent principles with post-Roe reproductive autonomy, shaping how causation and damages are analyzed when medical malpractice deprives parents of a meaningful choice. For students, Berman illustrates the limits of tort adjudication in confronting existential comparisons, the tailoring of damages to the specific interest invaded (informed choice), and the policy balance between deterring malpractice and avoiding speculative awards. It also set the stage for later New Jersey decisions refining remedies, including recognition of special damages in related contexts while continuing to reject general wrongful life recovery.
Berman v. Allan crystallizes the wrongful birth cause of action by marrying informed consent doctrine to reproductive autonomy. The court recognized that negligent nondisclosure in prenatal care inflicts a distinct parental injury—the loss of an informed choice to avoid the birth of a severely impaired child—and it crafted a damages framework tailored to that injury while avoiding speculative offsets.