Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (N.J. 1979)
Berman v. Allan is a landmark Supreme Court of New Jersey decision that shaped modern wrongful birth jurisprudence and clarified the tort system's response to medical malpractice occurring in the context of reproductive decision-making.
1) Does New Jersey recognize a parental cause of action for wrongful birth against physicians who negligently fail to inform expectant parents of available prenatal testing that would have revealed fetal abnormalities and enabled a lawful abortion? 2) Does New Jersey recognize a child's cause of action for wrongful life premised on the theory that, but for the physician's negligence, the child would not have been born to suffer life with impairments?
Under New Jersey law, physicians owe patients a duty of reasonable care that includes the duty to disclose material medical information necessary for informed decision-making, including the availability of prenatal diagnostic tests when risk factors (such as maternal age) make such testing material to a patient's reproductive choices. Parents may bring a wrongful birth action when a physician's breach proximately causes the loss of the parents' opportunity to avoid or terminate a pregnancy. However, New Jersey does not recognize a child's wrongful life claim because the law cannot coherently measure damages by comparing impaired life to nonexistence. Damages for wrongful birth are limited to those proximately caused by the deprivation of informed choice, typically including emotional distress and pecuniary losses attributable to the child's impairment (but not ordinary child-rearing costs).
The Supreme Court of New Jersey recognized the parents' wrongful birth claim predicated on the physicians' negligent failure to advise about amniocentesis and its implications, and allowed recovery of damages for emotional distress and pecuniary losses attributable to the child's condition. The court rejected the child's wrongful life claim, holding that New Jersey does not recognize such an action because damages are not legally cognizable when the comparator is nonexistence.
Berman v. Allan is a foundational wrongful birth case that many jurisdictions have cited when delineating the physician's duty to disclose prenatal testing options and when distinguishing between wrongful birth and wrongful life. It integrates informed consent principles with post-Roe reproductive autonomy, shaping how causation and damages are analyzed when medical malpractice deprives parents of a meaningful choice. For students, Berman illustrates the limits of tort adjudication in confronting existential comparisons, the tailoring of damages to the specific interest invaded (informed choice), and the policy balance between deterring malpractice and avoiding speculative awards. It also set the stage for later New Jersey decisions refining remedies, including recognition of special damages in related contexts while continuing to reject general wrongful life recovery.