CT Supreme Court confronts questions about ‘wrongful birth’ in medical malpractice case arising from fertility treatment at UConn Health

The state Supreme Court confronted philosophical questions about “wrongful birth” and the value of life Wednesday when the state asked the justices to reverse a $37 million verdict awarded to a family whose lives were upended by a tragically flawed artificial insemination procedure at UConn Health.

Jean-Marie Monroe-Lynch, her husband Aaron Lynch and their surviving son Joshua sued for malpractice after fertility specialists affiliated with the University of Connecticut’s medical center inseminated her with sperm from an anonymous donor infected with cytomegalovirus, or CMV, a common, sexually transmitted virus that has catastrophic effects on fetal development.

The procedure, a therapeutic donor insemination, succeeded in that the mother became pregnant with twins, a boy and girl. But she and the children were infected with CMV. One of the twins died and the other was born in January 2015 with long list of devastating disabilities that will put him in need of constant, life-long care. The surviving twin, Joshua, cannot communicate or care for himself, has global developmental delays; suffers from cognitive, hearing and movement deficits; suffers from autism and seizures, and spends hours each day having nutrition pumped into his body though a tube.

In its appeal, the state is arguing, among other things, that the family’s suit was not based in the usual definition of malpractice but is rather what has become known as a wrongful life suit, a relatively new and controversial action against medical practitioners for failing to properly prevent the birth of children, such as Joshua, shown through prenatal examinations to have tragically debilitating conditions.

The state argued that the court has not addressed the question of ‘wrongful life” litigation - “the issue of whether a child’s existence, as opposed to nonexistence, is a cognizable injury” - and urged the court to follow the lead of other states that do not permit it.

Most wrongful life suits have been filed in cases where physicians have permitted births of children with what should have been detectable genetic conditions, such as spina bifida. The rationale behind the suits is that not being born is preferable to being born.

Referring to a New York decision, one of the state’s lawyers, Jeffrey R. Babbin, argued that such questions - Is not being born preferable to life with a grave disability? - are better settled by philosophers than courts.

“Over 30 states have said courts are not equipped to say what (medical) conditions mean no life is superior to life,” Babbin said.

James J. Healy, who pressed the Lynch’s argument to let the verdict stand, told the justices that the suit was not about a wrongful birth, but about medical malpractice that deprived surviving twin Joshua the ability to enjoy a full and healthy life.

“Joshua’s claim is not that he never should have been born,” Healy said, “but that he was entitled to a healthy life.”

Should the court accept the wrongful life argument and dismiss the malpractice verdict, Healy argued the justices would effectively immunize the billion dollar medical fertilization industry from future claims arising from its medical errors.

The justices appeared at times bemused by the implications of measuring birth against the alternative.

Justice Steven D. Ecker observed that it can be argued that Joshua’s life was not made worse by medical malpractice, but rather was created by it. Had his mother been inseminated by a sperm sample from an anonymous donor not infected by CMV, Ecker said, Joshua “would have been a different person.”

At the time of the pregnancy, Jean-Marie Monroe-Lynch was a 34-year-old woman with a master’s degree in social work. Her husband was a 34-year-old transgender male, whose gender became relevant for two reasons. It explained why the couple could not conceive children and why he could not transmit CMV to his wife through intercourse.

The couple, suing with Joshua, accused the state, UConn and other affiliated defendants of malpractice in two aspects of the fertility and pregnancy treatments they obtained from UConn’s Center for Advanced Reproductive Services.

The family claimed that the treating physicians failed to obtain informed consent from Jean-Marie Monroe-Lynch, who had tested negative for CMV infection, before inseminating her with sperm from an anonymous donor she chose from a photograph and who was known to have tested CMV positive.

The Lynch’s also said their physicians were negligent in their prenatal treatment because they should have been alerted to what clearly were CMV-related developmental abnormalities in the twins by an ultra sound examination 22 weeks into the pregnancy.

When further examination revealed that the twin girl, named Shay, was stillborn, doctors performed a cesarean delivery in January 2015. Joshua survived.

The suit’s allegations were sharply contested and involved both theoretical and proven science.

The case was tried to Superior Court Judge Mark H. Taylor, rather than a jury. Taylor found the physicians were negligent by not pursuing ultra sound evidence of CMV developmental abnormalities that would have allowed the Lynches to terminate the pregnancy relatively early. Taylor also concluded the physicians failed to conform to accepted standards of care by not adequately warning Jean-Marie Monroe-Lynch of the consequences of insemination by a CMV positive donor.