California Civil Jury Instructions (CACI)

511. Wrongful Birth - Sterilization/Abortion Essential Factual Elements

[Name of plaintiff] claims that [name of defendant] negligently failed to prevent the birth of her child. To establish this claim, [name of plaintiff] must prove both of the following:

1. That [name of defendant] performed a negligent [sterilization/abortion] procedure; and

2. That [name of plaintiff] gave birth to an unplanned child after this procedure was performed.

New September 2003

Directions for Use

The general medical negligence instructions—instructions on the standard of care and causation—could be used in conjunction with this one.

Sources and Authority

  • “California law now permits a mother to hold medical personnel liable for their negligent failure to prevent or to terminate a pregnancy.” (Foy v. Greenblott (1983) 141 Cal.App.3d 1, 8 [190 Cal.Rptr. 84].)
  • Negligent sterilization procedure that leads to the birth of a child, either normal or disabled, can form the basis of a wrongful birth action. (Custodio v. Bauer (1967) 251 Cal.App.2d 303, 323—325 [59 Cal.Rptr. 463]; Morris v. Frudenfeld (1982) 135 Cal.App.3d 23, 37 [185 Cal.Rptr. 76].) The same is true of an unsuccessful abortion procedure. (Stills v. Gratton (1976) 55 Cal.App.3d 698, 707—709 [127 Cal.Rptr. 652].)
  • A wrongful birth claim based on a negligently performed sterilization or abortion procedure does not support an action for wrongful life: “California courts do recognize a wrongful life claim by an ‘impaired’ child for special damages (but not for general damages), when the physician’s negligence is the proximate cause of the child’s need for extraordinary medical care and training. No court, however, has expanded tort liability to include wrongful life claims by children born without any mental or physical impairment.” (Alexandria S. v. Pac. Fertility Medical Ctr. (1997) 55 Cal.App.4th 110, 122 [64 Cal.Rptr.2d 23].)
  • Civil Code section 43.6(b) provides: “The failure or refusal of a parent to prevent the live birth of his or her child shall not be a defense in any action against a third party, nor shall the failure or refusal be considered in awarding damages in any such action.”

Secondary Sources

6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 977

California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.22

3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical Practitioners, §§ 31.15, 31.50 (Matthew Bender)

36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical Malpractice, § 415.17 (Matthew Bender)