Gleitman v. Cosgrove 49 N.J.
22 (1967) 227 A.2d 689
When Dr. Robert Cosgrove, Jr. told Sandra Gleitman she was two months’ pregnant, she told him that a month earlier, she had contracted German measles. The doctor assured her that wouldn’t matter, and reassured her three months later when she asked again (at the prompting of Army doctors at Fort Gordon, where her husband was stationed). And so the pregnancy proceeded. Sad to say, the child, Jeffrey, suffered from defects in sight, hearing, and speech, necessitating several operations and attendance at a special school for blind and deaf children. The parents sued, she over the effects on her emotional state, and he, Irwin, for the costs of caring for the damaged child.
At trial, an expert medical witness for the Gleitmans said there was indeed demonstrable risk of defects when German measles were involved, and that common practice was to inform parents of the danger, giving them the option to abort the child. It then became a matter of he-said/she-said or who-said/where-said.
To complicate matters, there was a third plaintiff, the child Jeffrey, suing for his own birth defects. The problem with this was that Dr. Cosgrove could done have nothing to help him, for the measles had already had their impact by the time he found that she was with child. In typical medical malpractice suits, the alleged victims would name either a “sin of commission” (sawing off the wrong leg) or “sin of omission” (failure to remove all surgical sponges from a cavity before “closing up”) leading to further or greater affliction or impairment. But the charge was not that the doctor failed to administer some sort of corrective medicine or refer Sandra to a specialist for fetal surgery. No, the only “cure” for Jeffrey’s maladies was death by abortion.
Judge Proctor was not impressed by Jeffrey’s plea (formulated by his attorney):
The infant plaintiff is therefore required to say not that he should been born without defects but that he should not have been born at all . . . In other words, he claims that the conduct of defendants prevented his mother from obtaining an abortion which would have terminated his existence, and that his very life is “wrongful” . . . The normal measure of damages in tort action is compensatory. Damages are measured by comparing the condition plaintiff would be been in, had the defendants not been negligent, with plaintiff’s impaired condition as a result of the negligence. 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 a determination. The Court cannot weigh the value of life with impairments against the nonexistence of life itself.
He continued, with a word on parenting:
A considerable problem is raised by the claim of injury to the parents. In order to determine their compensatory damages, a court would have to evaluate the denial to them of the intangible, unmeasurable, and complex human benefits of motherhood and fatherhood and weigh these against the alleged emotional and money injuries . . . It is basic to the human condition to seek life and hold on to it however heavily burdened. If Jeffrey could have been asked as to whether his life should be snuffed out before his full term of gestation could run its course, our felt intuition of human nature tells us he would almost surely choose life with defects as against no life at all. ‘For the living there is hope, but for the dead there is none.’ Theocritus . . .
Note that he rendered his opinion six years before Roe v. Wade became the law of the land. This 1973 ruling swept away state laws on the matter, green lighting a culture of widespread aborting, with sixty million performed since the decision, penned by Justice Harry Blackmun, was handed down. The language may appear quaint, but it is philosophically rich and worth reading.
The right to life is inalienable in our society. A court cannot say what defects should prevent an embryo from being allowed life such that denial of the opportunity to terminate the existence of a defective child in embryo can support a cause for action. Examples of famous persons who have had great achievement despite physical defects come readily to mind, and many of us can think of examples close to home. A child need not be perfect to have a worthwhile life. . . . Eugenic considerations are not controlling. We are not talking here about the breeding of prize cattle . . . Though we sympathize with the unfortunate situation in which these parents find themselves, we firmly believe the right of their child to live is greater than and precludes their right not to endure emotional and financial injury.
His statement that the “right to life is inalienable in our society” echoes Thomas Jefferson’s expression in the Declaration of Independence, his citation of the “self-evident” truths “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” Jefferson was a deist, and his copy of the Bible was a cut-and-paste affair, where he took out troublesome supernatural and soteriological passages, leaving it a book of moral counsel. So though Christians and Jews tied the life-right to humans being made in the “image of God,” he found enough from the “light of nature” to draw the line against murder. Immanuel Kant, another non-Christian, argued that “rational nature” lay at the heart of ethics, and that treating a person (an exemplar of “rational nature”) simply as a tool for one’s projects or gratification was illegitimate. He would have resonated with Judge Proctor’s dismissal of the “prize cattle” approach and also his impatience with the Gleitman’s ruling interest in emotional and financial convenience.
Well, we’ve come a long way from Judge Proctor’s ruling, and the carnage has been horrific.