Wrongful Birth: Is the Orthodox View Consistent with the Law?

Wrongful Birth: Is the Orthodox View Consistent with the Law?

by Slavko Ristich, Esq.

In 1808, Lord Ellenborough wrote that a “husband had no action for loss of his wife’s services through her death, and declared in broad terms that in a civil court the death of a human being could not be complained of as an injury.”1 By in large this was the law of not only England, but the prevailing law of the commonwealth and the United States.

In essence, the law served to make it cheaper for a defendant to kill a plaintiff rather than to injure him. The inequity in the law saw the passage of the Fatal Accidents Acts of 1846 and with it came the modern wrongful death law suit. Today, many see the cause of action for wrongful death as a logical segment of civil law, where certain bereaving family members may have a remedy against a negligent tort-feasor.

Today, Courts are facing similar questions, only the cause of action Courts are faced with is that of “wrongful birth.” There are two basic classifications into which the cases in this area may be divided: 1) those where the defendant tortiously inflicts a physical injury, through to body of the mother, upon an unborn child; and 2) those where the defendant’s tortious acts or omissions result in the birth of the unwanted.2 The first classification has not garnered as much controversy as the logic can be seen when a tort-feasor causes injury to an unborn child. It is worth mentioning, however, that the Courts have been very careful (since 1973) in how they approach the issue of injury to the unborn.

The second classification has caused much greater disagreement in the law and is currently on display in a New Jersey Courtroom.3


The underlying facts of the case read much like a nightmare for a first time parent. Wanda Tineo became aware that she was pregnant in June 2002. Like most first-time parents, Mrs. Tineo, along with her husband, were very excited about the prospect of bringing a child into this world. However, the Tineos were saddled with a concern that was certainly out of the ordinary.

Tineo’s family had a history of a rare genetic disorder known as myotubular myopathy. Myotubular myopathy is a family of rare, inherited diseases manifesting itself as a defect in the cell structure of voluntary muscles; it causes low muscle tone and, in most forms, is usually apparent at birth. Affected children have diminished respiratory capacity and are often partially or totally ventilator dependent.4

Prior to her pregnancy, Wanda watched two of her nephews die of this condition before their tenth birthdays. Both her and her husband had made a decision to abort any pregnancy if their unborn child was afflicted with this disease. To that end, the Tineos consulted the services of Dr. Khoury Aldo, a high risk obstetrician and gynecologist.

Ms. Tineo requested a test, which included extracting amniotic fluid from the amniotic sac and testing her unborn child for the rare disorder. To this point, all parties agree as to how this case developed.

Thereafter, the defendants disagree as to what transpired. Dr. Khoury claims that he ordered the test to be performed by LabCorp of America, while LabCorp contends that Dr. Khoury failed to complete the request form properly. Regardless of fault, the necessary test was never completed and the Tineos were advised that their unborn child was healthy and free of myotubular myopathy.

In April 2003, Justin Tineo was born and to the surprise of all, was born with this debilitating disease. The Tineo family filed suit against Dr. Khoury, LabCorp, and the treating OB/GYN.

As of the date of this article, the case is before a New Jersey Court.

The Law and The Orthodox View

This second branch of wrongful birth cases almost without fail includes doctors and laboratories as defendants. In the past, such cases have arisen from contraception failure, negligent sterilization, abortion procedures or like the case herein, wherein doctors failed to diagnose a disease or infirmity. In cases such as the Tineo case, plaintiffs allege that if the physician advised them of the illness, they would have chosen to abort the unborn child.

This type of case was first seen in New Jersey in 1967 with the case of Gleitman v. Cosgrove, wherein the Supreme Court of New Jersey refused to recognize a cause of action for “wrongful birth,”5 holding that “the infant plaintiff would have us measure the difference between his life with defects against the utter void of nonexistence, but it is impossible to make such distinction.”6 They also mentioned the “unmeasurable and complex human benefits of motherhood and fatherhood.”7

However, the Gleitman decision needs to be contextualized in a pre- Roe v. Wade era. Since the legalization of abortion in 1973, Courts have been much more willing to entertain such cases, since the alternative (abortion) is now viewed (by the Courts) as a permissible option, whereas when the Gleitman decision was decided, abortion was illegal and impermissible for any Court to recommend. Although Gleitman was reaffirmed both in New York and California (both bastions of the pro-choice movements), the case currently in New Jersey may be a marker for the future of wrongful birth cases.

However, in doing my research of these issues, I was very pleased to see that the Courts consistently used a common sense approach to cases such as the Tineo case. The Courts have adopted the attitude that “any life is better than no life” or at the very least, that Courts are not in the business of deciding if disabled existence is better than non-existence. My sole concern in cases such as the Tineo case was that little Justin was getting the expensive care he needed. s

Since ancient times the Church has viewed deliberate abortion as a grave sin. The canons equate abortion with murder. This assessment is based on the conviction that the conception of a human being is a gift of God. Therefore, from the moment of conception any encroachment on the life of a human being is criminal.8

The Orthodox Christian view of abortion was presented to the United States Supreme Court in the Amicus Curiae brief of James Jatras. Mr. Jatras wrote:

Among the most highly regarded of ancient Christian writings is the Didache, which dates from the late first century. Its teaching is unambiguous: “Do not murder a child by abortion or kill a newborn infant.” This is echoed in another didactic writing universally esteemed in the ancient Church, the Epistle of Barnabas, from the early second century: “Never do away with an unborn child or destroy it after its birth.”

The writings of the Fathers of the Church and other authorities further attest to the unanimity with which abortion was condemned. Among the earliest was the philosopher and apologist Athenagoras of Athens, who wrote to the Emperor Marcus Aurelius to defend Christians against false charges of murder: “What reason would we have to commit murder when we say that women who induce abortions are murderers, and will have to give account of it to God?” St. Basil the Great was unequivocal: “A woman who deliberately destroys a fetus is answerable for murder.” St. John Chrysostom who in his famous homilies railed against men who secured the abortions of their illegitimate offspring, called their actions “even worse than murder.” Of such men who impelled women to have abortions, he said, “You do not let a prostitute remain a prostitute, but make her a murderer as well.”

While the Courts have neglected to directly answer the question of whether a disabled life is better than non-existence, the Orthodox Christian view is clear. All life is better than non-existence, because our lives are given by the grace of God and not to be taken away by the deeds of man.

While the costs to care for such children can be overwhelming, this is a problem we need to tackle as a society, rather than on an individual level. In an age of excessive materialism, outrageous military spending, and corporate malfeasance have we been led so far off the path that we can spend on such items but we are too inept as a society that we are unable to take care of those most in need, like little Justin Tineo?

Thus far the Courts have not recognized a cause of action for wrongful birth and in doing so, have implicitly stated that any life is better than non-existence. This is completely consistent with the common sense approach of the Orthodox Church. Let us now pray that our legislators do their job and make sure that girls and boys like little Justin Tineo get the care that they need and the care they deserve. Let us pray that little Justin’s parents feel the true joy of parenthood and that their child feels the deep love of his parents.

Justin’s life was not a wrongful birth, but a rightful life; the Orthodox Church understands this fact, but what will the Court in New Jersey say?

1Baker v. Bolton, 1808, 1 Camp. 493, 170 Engl. Rep. 1003.

2Prosser and Keeton on Torts, 5th Ed., pg. 367.



5Gleitman v. Cosgrove 49 N.J. 22 (1967)

6Gleitman v. Cosgrove at id.

7Gleitman v. Cosgrove at id.