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22 Mem. St. U. L. Rev. 881 (1991-1992)
Torts - Cowe by Cowe v. Forum Group, Inc.: Wrongful Life and the Dilemma of Comparing Impaired Existence with Nonexistence

handle is hein.journals/umem22 and id is 891 raw text is: Torts-Cowe by Cowe v. Forum Group, Inc.: Wrongful Life and the Dilemma of Comparing Impaired Existence With Nonexistence While in the total care of a nursing home, the plaintiff's mother, a severely retarded woman, was raped and impregnated by another resident.' After his birth, the plaintiff was adopted.' Through his adopted mother, the plaintiff brought an action against the nursing home asserting wrongful life, negligence, and other prenatal tort claims.a The trial court granted the nursing home's motion for sum- mary judgment. The Indiana Court of Appeals reversed and re- manded, holding that genuine issues of material facts existed as to all of plaintiff's claims.5 Specifically, the court of appeals chose to recognize a wrongful life cause of action.6 The Supreme Court of Indiana held, reversed and remanded.' Damages for wrongful life are not cognizable under Indiana law.' Cowe by Cowe v. Forum Group, Inc., 575 N.E.2d 630 (Ind. 1991). Many courts distinguish wrongful life actions from actions for wrongful pregnancy and wrongful birth. A wrongful pregnancy ac- tion is brought by the parents of a healthy child on their own behalf to recover damages resulting from a defective pregnancy avoidance procedure such as a tubal ligation, vasectomy, or misfilled birth con- trol prescription.9 Smith v. Gore,'0 a Tennessee case, is an example of such a cause of action. The court in Smith allowed the mother to I. Cowe by Cowe v. Forum Group, Inc., 541 N.E.2d 962, 964 (Ind. Ct. App. 1989), rev'd, 575 N.E.2d 630 (Ind. 1991). 2. Cowe, 541 N.E.2d 962. 3. Id. 4. Id. at 964. 5. Id. 6. Id. 7. Cowe, 575 N.E.2d at 637. 8. Id. at 635. 9. See, e.g., Garrison v. Foy, 486 N.E.2d 5 (Ind. Ct. App. 1985) (parents sued physician after failed vasectomy and healthy child was born); Nanke v. Napier, 346 N.W.2d 520 (Iowa 1984) (mother sued physician after failed abortion and healthy child was born); Miller v. Johnson, 343 S.E.2d 301 (Va. 1986) (mother sued physician after a failed abortion and healthy child was born). 10. 728 S.W.2d 738 (Tenn. 1987).