"Wrongful births" bill heads to Texas Senate floor

The Texas Senate Committee on State Affairs voted Monday to send a bill to the full Senate that would prevent parents from suing their doctor if their baby is born with a disability.  

Committee members approved Senate Bill 25 on an 8-0 vote after hearing several people testify for and against it. Abortion opponents say the bill protects children living with disabilities and prevents doctors from potentially encouraging abortions to avoid lawsuits. Groups that support abortion rights argue that the bill would encourage doctors to lie to patients about whether their unborn child has a disability and wouldn't allow families to make informed decisions about whether they want to move forward with their pregnancy. 

Sen. Brandon Creighton, R-Conroe, author of the bill, said current law sends the message that “wrongful births” are real and discriminates against children born with disabilities.

“The presence of a disability in a child should not be grounds for a lawsuit,” Creighton said. “I feel that Senate Bill 25, if passed, would be in line with a large majority of Texans and their values.”

The idea of “wrongful births” goes back to Jacobs v. Theimer, a 1975 Texas Supreme Court case. In that case, Dortha Jean Jacobs contracted rubella in her first trimester of pregnancy and gave birth to a baby born with defective organs. She and her husband went on to sue her doctor, Louis M. Theimer, citing that failing to diagnose her illness early prevented them from knowing all of the risks of having their baby. The courts awarded them money for medical expenses for their child.

Jennifer Allmon, executive director for the Texas Catholic Conference of Bishops, said during the hearing that Creighton's bill doesn’t restrict access to or regulate abortion. She said the bill protects children with disabilities from having parents going in court to say “they wish that child had not been born.”

“We believe that a lawsuit that begins as its premise that ‘we should’ve had the opportunity to kill our disabled child’ sends a terrible message to those disabled children in Texas,” Allmon said. “To hold a physician financially responsible for a disability he did not cause presumes a level of control over human development that physicians and parents simply do not have.”

But Blake Rocap, legislative director for NARAL Pro-Choice Texas, said that the bill would encourage doctors to withhold information from parents about an unborn child's disability.

“We shouldn’t have to stand up and say that it shouldn’t be policy for the state of Texas to excuse doctors from lying to their patients, and that is what this bill does,” Rocap said.

Read related Tribune coverage:

• Senate Health and Human Services Committee members heard emotional testimony from reproductive rights and anti-abortion advocates on Wednesday over Senate Bill 8, Senate Bill 415 and Senate Bill 258.
• Texas Democrats and abortion rights advocates are strategizing amid mounting worries over what the GOP-led Legislature and federal lawmakers may do in the coming months to further restrict access to the procedure.
• Reproductive rights advocates have expressed concern that Texas lawmakers will take bolder steps in the upcoming session to defund abortion providers and dismantle access to abortion, birth control and other sexual health services.