A wrongful birth lawsuit is predicated upon a woman's right to choose for herself whether or not to continue or terminate a pregnancy. In New Jersey, this cause of action was first recognized in the seminal case of Berman v. Allan, 80 N.J. 421 (1979), where a woman gave birth to a child with Down's Syndrome after she and her husband were not informed before the birth that there was a risk of Down's Syndrome and no tests were performed during the pregnancy.
Damages for these causes of action typically include emotional injury to the parents caused by being deprived the option of accepting or rejecting a parental relationship with the child. Such damages may also include special medical expenses attributable to raising a child with a congenital impairment, which in some cases can be significant.
Damages in these cases typically do not include the birth defect or impairment itself. An action for such damages, for having to live with the disabilities, would belong to the child and is termed under the law as an action for "wrongful life."