November 19, 2012

On November 14, 2012, the Superior Court of Pennsylvania declared that the Pennsylvania statute prohibiting causes of action for wrongful birth and wrongful life (42 Pa.C.S.A. § 8305) was unconstitutional because the manner in which § 8305 was enacted violated the “single-subject rule” contained in Article III, Section 3 of the Pennsylvania Constitution, which states: “No bill shall be passed containing more than one subject, which shall be clearly expressed in its title, except a general appropriation bill or a bill codifying or compiling the law or a part thereof.”

The single-subject requirement of Article III, Section 3 serves a variety of purposes, including: (1) preventing the attachment of unpopular riders that would not become laws on their own to popular bills that are sure to pass; (2) providing for a more considered review of bills brought before the General Assembly, as a bill addressing a variety of subjects is less likely to get such attention; and (3) protecting the integrity of the Governor’s veto power. The single-subject rule requires that the added provisions assist in carrying out a bill’s main objective or are otherwise ‘germane’ to the bill’s subject as reflected in its title.

The Superior Court noted in the current case that when Senate Bill 646 was first introduced on March 19, 1987, it contained a single provision regarding the appointment of substitute bail commissioners in Philadelphia. When SB 646 went to the House after minor amendments in the Senate, the House Judiciary Committee added a provision for sentences for offenses committed while impersonating a law enforcement officer. On the third day the House was to vote on SB 646, a number of significant amendments were made, including but not limited to, the addition of Section 722 regarding direct appeals to the Pennsylvania Supreme Court from the Court of Common Pleas in specified circumstances, Section 8305 prohibiting actions for wrongful birth and wrongful life, Section 8306 limiting the defenses available for a claim of an injury that occurred in utero, Section 8933 calling for the dismissal of criminal cases in prescribed circumstances, and Sections 9541-9546 – the Post Conviction Relief Act – which replaced the Post Conviction Hearing Act.

The Superior Court stated that considering all of the amendments included in the final version of SB 646, it could not discern a single overarching subject to which they all relate. That all of the amendments are encompassed by a single Title (Title 42) is insufficient to overcome an Article III, Section 3 challenge.

The Underlying Facts

In the case decided by the Superior Court, the plaintiffs were a Jewish couple who underwent blood tests to determine if the wife was a carrier of a certain gene mutation, at the recommendation of her doctor. The testing revealed that wife was a carrier of the gene mutation that causes familial dysautonomia (“F.D.”) but her doctors allegedly told her that the testing results were negative and that she was not a carrier for any of the gene mutations for which she was tested.

The couple’s child was born in September 2008. In December 2008, the couple was told that their son might be suffering from F.D. and they learned for the first time that the wife was a carrier, and that she was misinformed about the February 2008 blood test results. They subsequently filed a wrongful birth action on their own behalf and a wrongful life claim on behalf of their son, both of which the trial court dismissed because § 8305 prohibited actions for wrongful birth and wrongful life.

Source Sernovitz, et ux.v. Dershaw, et al., 2012 PA Super 248.

If you or your family suffered harms due to the failure of a medical professional to timely advise you of the results of medical testing, or provided false results, you should promptly seek the advice of a local medical malpractice attorney to help you investigate your possible medical malpractice claim and represent you in a medical malpractice case, if appropriate.

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