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WASHINGTON D.C., JUNE 28, 2012, ( – A girl born with cystic fibrosis is at the center of a lawsuit filed by her Montana parents, who claim they would have aborted their girl had they known of her chances of having the disability. 

Judge Mike Salvagni ruled that the parents, Kerrie and Joe Evans, are free to move forward with their lawsuit. 

Kerrie, who was 38 while pregnant, underwent risky genetic testing during her first trimester.  However, Livingston HealthCare and nurse Peggy Scanson, who were among the healthcare providers, did not offer the couple a blood test, which would have indicated that the couple carried a recessive gene likely to cause cystic fibrosis in their offspring.  The likelihood is estimated at 25 percent.

The couple says the pregnancy was unplanned.  In the lawsuit they say they “had the most private of discussions about terminating the pregnancy in the event the fetus tested positive for serious fetal abnormalities.”


The lawsuit seeks damages for the parent’s emotional distress and for their daughter’s medical costs.  It also asks that the clinic provide expectant couples with a checklist of available genetic testing, which couples must either accept or reject in writing.

Julie Lichte, the attorney for Scanson and Livingston HealthCare, said the Evans are seeking damages “for a missed opportunity to abort their daughter.”  This case, Lichte said, “will ask the jury to award them damages for the very existence of their daughter.”

The clinic and Scanson asked the case to be dropped, saying that it is a ‘wrongful birth’ lawsuit. Montana is not one of the dozen or so states that prohibit ‘wrongful birth’ lawsuits, but it is also not one of the around 20 that explicitly allow for them.  It has no precinct on the matter. 

Monica Rafie, speaking on behalf of Be Not Afraid, a pro-life organization that provides support to parents given a poor prenatal diagnosis, said, “This is obviously horrible in terms of how this will affect the child should she ever find out.”

The fact that anyone can be held accountable because parents haven’t received a “perfectly healthy baby” suggests that “we are looking at the very amazing blessing of conception and birth in a consumeristic way,” she said.

Currently, more states have comes forward to propose legislation prohibiting “wrongful birth” lawsuits. Under these proposals, in the event that doctors fail to identify or disclose defects prenatally, this failure could only be deemed “medical malpractice” rather than “wrongful birth.” 

The shift, Rafie said, “is a subtle shift, but an important one.  There should never be such a thing as ‘wrongful birth’.  While legislative shifts won’t solve the problems in this matter, it can serve as a kind of speed bump to make us think about the road we are going down.”