The Pennsylvania Supreme Court recently upheld a law that bars wrongful birth lawsuits. In the underlying case, Sernovitz v. Dershaw, the plaintiffs filed suit against Mrs. Sernovitz’s treating physicians for failure to inform her of circumstances that would have otherwise led to her having an abortion.
The plaintiffs were both of Ashkenazi Jewish heritage, which placed their unborn baby at an increased risk of suffering from a genetic disorder known as familial dysautonomia. During her prenatal care, Mrs. Sernovitz underwent genetic testing, which showed that she was a carrier of the gene mutation; however, her treating physicians negligently misinformed her about the test results and told her that she was not a carrier. Mrs. Sernovitz gave birth to a son who suffered from familial dysautonomia. After the birth of her son, the plaintiffs learned that they were both carriers of the gene mutation. If they were correctly informed of the test results, further testing would have been conducted and they would have learned of the baby’s condition while still in utero. Had the plaintiffs known of the baby’s condition while still in utero, Mrs. Sernovitz would have had an abortion.
The plaintiffs filed suit against the healthcare providers asserting claims for wrongful birth and seeking damages for medical expenses and emotional distress. Act 47 of 1988, however, stood in their way as it bars claims for wrongful birth. Plaintiffs argued that the Act was unconstitutional in its entirety. Specifically, plaintiffs argued that the Act’s original purpose was changed during its passage through the General Assembly, it contained more than one subject including regulations regarding criminal proceedings, and in its final form, it was not considered on three days in each House. The defendants filed preliminary objections, which were granted by the court of common pleas. The trial court found that the plaintiffs’ claims were barred by the Act and their complaint was dismissed. The Superior Court reversed the trial court’s decision. In doing so, the court found that the Act violated the single-subject rule and that there was no unifying topic to which all aspects of the Act pertained.
On appeal to the Pennsylvania Supreme Court, defendants argued that the doctrine of laches should be applied to find the plaintiffs’ claims inequitable due to an unreasonable delay in challenging the Act.[1] At the outset, the Court disagreed with the Superior Court’s ruling that the Act violated the single-subject rule. In doing so, the Court quoted a prior ruling and stated that “it would be arbitrary to preserve one set of provisions germane to one topic, and invalidate the reminder of the bill[.]”[2]
In determining whether the doctrine of laches applied to the Sernovitz’s claims, the Court considered the delay in challenging the Act, as well as the defendants’ public policy argument. First, the Court considered the defendants’ argument that the 22-year delay in challenging the Act rendered plaintiffs’ claims inequitable under the circumstances. The plaintiffs argued that the defendants’ laches argument was waived since they did not raise it at the trial or appellate court level. The Court agreed with the plaintiffs, finding that the doctrine of laches is an affirmative defense that should be raised in a responsive pleading. Further, the Court found that the doctrine did not apply to claims such as this “in which tort plaintiffs, who may have been minor children or not yet born at the time of the legislation under review became law, institute an otherwise timely action after suffering a private injury.”[3] However, the Court made a distinction in this case as opposed to ordinary laches defenses. It noted that, in an ordinary laches scenario, the plaintiff’s claim is otherwise valid and the defendant bears the burden to demonstrate that enforcing the plaintiff’s rights would be inequitable under the circumstances. In this case, the plaintiffs’ claims were otherwise presumptively invalid as Act 47 clearly precluded wrongful birth claims. Therefore, there was a strong presumption of validity and the plaintiffs, as challengers, had the burden in regard to their allegation of unconstitutionality.
Next, the Court turned to the public policy argument that allowing the plaintiffs’ claims to proceed would invalidate Act 47, which the public had relied upon in criminal cases for over 20 years. The Court held that, “[i]nvalidating all of these provisions retroactive to 1988 would be unduly disruptive to the orderly administration of justice in Pennsylvania.”[4] Ultimately, without addressing whether the Act violated the single-subject rule, the Court concluded that the substantially delayed nature of the plaintiffs’ challenge rendered the legislation immune to attack. Accordingly, the Superior Court’s ruling was reversed and the trial court’s order dismissing the plaintiffs’ amended complaint as barred by Act 47 was reinstated.
[1] Sernovitz v. Dershaw, No. 123 MAP 2014 (2015).
[2] City of Philadelphia v. Commonwealth, 575 Pa. 542, 838 A.2d 566 (2003).
[3] Sernovitz, No. 123 MAP 2014, 13 (2015).
[4] Id. at 17.