Can There Be Tort Liability For Surrogate Mothers Who Breach Surrogacy
Contracts?
Legal Issues of the 21st Century
May 6, 2001
Christie Branson
Seminar Paper
May
4, 2001
Dear Ms. Buffay,
This
letter is in response to your appointment with me a couple of weeks ago
regarding the surrogacy contract you executed. I have done some research and have evaluated your
situation. Below are the facts as
you described to me. If there are any discrepancies, please let me know
immediately as the legal conclusion can differ based on a change in the facts.
Following a description of the facts is my analysis of your legal
dilemmas. I suggest that after
reading and understanding this letter, we should discuss pursuing a cause of
action for negligence against your sister in law, Phoebe Buffay.
Client Facts
All
parties involved are domiciled and reside in the state of California. On July, 1, 1997, you executed a
surrogacy contract with your husband, Frank Buffay, Jr., (Frank) and Phoebe
Buffay (Phoebe), your sister-in-law, to commence a surrogacy relationship. The
contract provided, inter alia, that Frank Buffay would
provide sperm, and you would provide the egg, to artificially inseminate
Phoebe. Phoebe would carry any
resulting pregnancy to term and then terminate any parental rights she may have
with the child. Phoebe had been a
surrogate mother in the past, so you assumed there would be no troubles in
regard to the relationship. You
and Frank agreed to pay for all of Phoebe’s medical costs and pay Phoebe
$50,000 for her services. The
surrogacy contract also included the following clauses:
VI.
Medical Instructions
. . . (B) Embryo carrier will not smoke,
drink alcoholic beverages, use illegal drugs, non-prescription medication or
prescription medication without approval of the responsible physician. . . .
(D) Embryo carrier will do everything
reasonably appropriate for her good health and the good health of the fetus
during pregnancy.
(E) Embryo carrier will not engage in any
hazardous or inappropriate activity during the pregnancy. . . .
On
August 15, 1997, it was realized Phoebe was pregnant and all parties were
overjoyed. The pregnancy was very
long and painful. The responsible
physician induced labor on May 30, 1998.
At birth, the child was of extremely low birth weight and had to stay in
the hospital for one month to continue to develop. Physicians were confused as to why the child was in such
poor condition. Phoebe later
disclosed that while pregnant, she participated in a rare acupuncture and
massage therapy that was supposed to make the pregnancy less burdensome while
improving the child’s health.
Phoebe is a professional massage therapist and learned of this procedure
over the Internet. Upon
researching these therapies, the doctors learned that the procedures have a
chance of slowing the development of the fetus and cause future cognitive
development problems.
After
leaving the hospital, Phoebe released custody of the child. Phoebe executed all necessary paper
work to release any rights she may have to the child. You and Frank named the child Stephanie and took her into
your home. Stephanie has had
numerous problems with her development.
Her cognitive development is far below normal children the same
age. You have taken her to numerous
pediatricians that have found no procedures will help Stephanie. The prognosis
is that Stephanie will be in special education her whole life and will have
significant problems adapting to society.
You have refused to pay Phoebe the $50,000 and Phoebe has filed suit
against you and Frank for breach of contract.
You
came to me with concerns about defending the contract cause of action and about
filing a counter suit against Phoebe on tort theories. You would also like
advice regarding any causes of action Stephanie may have against Phoebe.
Issues Presented
Is
the surrogacy contract valid?
If
the contract is valid, did Phoebe breach the contract?
Is
Phoebe liable for negligence?
What
damages are available?
Short Answers
Under
California law, the surrogacy contract is valid.
In
the breach of contract action by Phoebe against you and Frank, it is likely
that you are not liable for breach of contract as your non-payment of the
$50,000 was justified as a result of Phoebe’s material breach of the contract.
In a
cause of action for negligence initiated by you and Frank, it is likely you
will win due to Phoebe’s negligent behavior while pregnant. You will probably only receive
pecuniary damages and will have little success in establishing a claim for
emotional damages.
In a
cause of action for negligence initiated by Stephanie, there are several
hurdles that must be overcome, but it is likely that Stephanie will be able to
recover some damages under traditional principles of tort law.
Analysis
1.
Is
the surrogacy contract valid?
The
facts of your case mirror that of Johnson v. Calvert
where a married couple supplied the requisite genetic material and another
woman agreed to gestate the baby.[1] The woman was paid $10,000 to
compensate her for her services in gestating the fetus and undergoing labor.[2] She was to relinquish all parental
rights to that the child in favor of the couple.[3] The Supreme Court of California found
this contract to be valid and not against public policy.[4]
The court stated that this was not an illegal adoption prohibited by Cal. Penal
Code section 273 because the contract was for a “gestational surrogacy” and not
for the termination of parental rights as to the baby but as a payment for
services while gestating the baby.[5] Therefore, since the facts of your case
indicate that you compensated Phoebe primarily for gestating the baby, it would
follow that your contract is valid in California.
It
should be noted that In re Baby M involved a New Jersey case
where surrogacy contracts were held invalid based on public policy.[6] In re Baby M can
be distinguished for two reasons.
The applicable jurisdiction for resolution of this dispute is California
and therefore a case from New Jersey has less authority.[7]
Also, the contract in Baby M was a traditional surrogacy
contract where the gestational mother was also the biological mother of the
child.[8] Since the facts of your situation
differ greatly from this case law, it is likely that your contract with Phoebe
is most certainly valid in the state of California.
2. Did
Phoebe breach the contract?
It is
likely that Phoebe did breach the contract when she underwent the acupuncture
and massage therapy. The second
restatement of contracts states “when performance of a duty under a contract is
due, any non-performance is a breach.”[9] The term in the contract stated that
Phoebe should not perform “any hazardous activity.” It is likely that the massage and acupuncture could be
construed as hazardous to endure while pregnant. This issue is rather fact sensitive and will require expert
testimony from doctors. But after
all the testimony is presented, I feel a jury would find that acupuncture and
deep massage on a pregnant woman’s belly is a hazardous activity, making Phoebe
in breach of the contract. While
it is clear Phoebe was in breach of the contract, explanation of the type of
breach and its consequences is necessary to determine damages available to you
and Frank.
A
material breach is one that justifies non performance of the other party.[10] If it can be proven in your defense
that Phoebe materially breached the contract, then you were justified in
denying her payment of the $50,000.
The question whether a material breach has occurred is fact sensitive.[11] A breach is less likely to be
considered material if it can be paid for in damages.[12] This breach prevented Phoebe from
producing a healthy baby and it is difficult to assess the damages attributed
to endangering the creation of a life.
It is likely that the breach is material. Therefore, you and Frank were justified in not performing
the contract and not paying the $50,000 to Phoebe. As such, Phoebe will probably fail in her breach of contract
action against you and Frank.
3. Can
you obtain emotional damages for Phoebe’s breach?
It is
unlikely that you and Frank will be able to obtain emotional damages for the
breach committed by Phoebe.
Generally emotional or “mental distress” damages are not available in
contract actions.[13] There are some slim exceptions to this
rule when other courts have looked to the nature of the breach and if the
conduct was reprehensible or amounting to a tort.[14] Where parties have been able to recover
in tort theory, then their ability to recover emotional damages under a
contract is valid. Also, contracts
where the breach has caused bodily harm or the breach of which causes serious
emotional disturbance, emotional damages will be allowed.[15]
The cases interpreting these rules have varied tremendously and have almost
always been overruled or distinguished by later cases.[16]
In Chung, the
plaintiffs were allowed to recover emotional damages when a shopping center
breached their lease agreement.[17] This case was later distinguished
making it an anomaly in contract law.[18] While it maybe arguable that there is
an action based on contract for emotional damages, it would be prudent to try
to obtain emotional damages solely on a tort theory. But as will be discussed infra, it
will be difficult to obtain emotional damages based on tort theory as well.
3. Is
Phoebe liable for negligence?
To be
successful in a cause of action for negligence, a plaintiff must establish the
defendant owed a duty to the plaintiff, breach of that duty, and the breach was
both the cause in fact and proximate cause of the injuries by preponderance of
the evidence.[19] The plaintiff must also prove damages
resulted from the injury.[20] I will structure the evaluation of a
negligence suit brought by you and Frank separately than a suit brought by
Stephanie as each cause of action has some legal arguments that must be
evaluated separately.
a. Duty
1. Did
Phoebe have a duty to you and Frank?
Duty
can be established by contract.[21] When a person voluntarily under takes
an affirmative action to act with reasonable care, it is a duty that cannot be
abandoned.[22] Since Phoebe
executed and entered into a contract with both you and Frank, there is little
question that Phoebe owes a duty to the both of you.
2.
Does
Stephanie have standing?
Some
states have limited the availability of tort law to children when the tort occurred
while they were unborn. Some
states do no consider a fetus viable and therefore the resulting child cannot
recover for damages. California
differs from this philosophy and has one case on point from 1939.[23] Scott v. McPheeters was
based strictly on interpretation §29 of the California Civil Code (currently
§43.1 Cal. Civil code):“A child conceived, but not yet born, is to be deemed an
existing person, so far as may be necessary for its interests in the event of
its subsequent birth.”[24] The case interpreted “interests” to
include a right of action under tort law allowing for a child to recover from
the mother’s physician in tort for damages resulting from pregnancy.[25] The Scott case
shows that Stephanie has standing to sue for damages sustained during
pregnancy.
3.
Did
Phoebe have a duty to Stephanie?[26]
While
it is clear in California that Stephanie will have standing, it is quite
another consideration to investigate if Phoebe owed a duty to Stephanie. Under general principals of tort law, a
tortfeasor is liable for all foreseeable harm his negligence proximately
causes.[27] It is foreseeable that a mother’s
actions could cause harm to her fetus.
Common examples include smoking and drinking alcohol while pregnant. While common law makes it somewhat clear
that there could be a duty owed to Stephanie, there are no California cases on
point making it necessary to review how other states have confronted this
issue.[28]
The
most recent case regarding this issue is Chenault v.Huie from
a Texas appeals court.[29] The case involved the daughter of a
cocaine addict suing her mother for injuries attributed to cocaine addiction
while the mother was gestating the daughter.[30] The court stated that no duty should be
imposed on a pregnant women in the care of the fetus.[31] The court felt that public policy
outweighed the need to impose this duty.[32] Due to the “unique relationship between
a mother and her unborn child, and the fact that any and every action taken by
a pregnant woman may have some effect on her child’s growth and development,
the existence of a risk taken by a mother may never be clear.”[33] An Illinois Supreme court case decided
in the same manner as Chenault by stating that it would be
undesirable to establish a uniform standard of conduct for pregnant women.[34] The court also struggled with the fact
that creating a duty would interfere with a woman’s right to control her own
life and legal rights.[35]
Conversely,
two recent cases in New Hampshire and Michigan recognized that mothers do owe a
duty to an unborn child.[36]
The Bonte court stated that there is no reason why a woman should be
held to the different duty while pregnant than they are subject to while the
child is alive.[37] The court rejected the notion that a
bond between a pregnant woman and her fetus deserved different treatment than
other relationships.[38]
In
all of the above cases the mother was planning to retain her parental rights to
the child. Our situation is quite
different as Phoebe had no intention of retaining parental rights when she
executed the contract and has thus terminated her parental rights to
Stephanie. As such, it could be
argued that imposition of a duty by a “mother” in the strictest sense is not
necessary here. The special
circumstances surrounding the “bond” with mother and child is not necessary for
review because Phoebe is not genetically related to Stephanie. Phoebe could very well be considered
the same as a third party who would owe a duty to Stephanie. Under this line of analysis it would be
simple to conclude that a duty to Stephanie is warranted by the common law
mentioned above that duty be imposed where actions could foreseeably result in
harm. Gestating a fetus makes it
foreseeable that harm could occur.
Therefore, it is appropriate to conclude that in narrow cases like that
of surrogacy relationships, it would be just to invoke a duty on behalf of the
mother to the fetus.[39]
Another
rule of law establishing a duty is when “one who had no duty to do so, takes
charge of another who is helpless to adequately aid or protected himself . . .
.”[40] If we observed Phoebe primarily as a
third party, it would be clear that she under took the duty to care and protect
this helpless fetus by contract.
While a fetus is not a person, the child it becomes is given standing to
sue as discussed supra in the Scott
case.[41] This is similar to the liability
imposed on an obstetrician performing the necessary examinations on the fetus
during pregnancy. [42] If a physician were negligent in his
care of Stephanie’s fetus, Stephanie could successfully sue him as well. This analogy makes it more clear that
Phoebe’s willingness and agreement to gestate the fetus also entitled her with
a duty to reasonably care for the fetus.
Due to the negative case law in other states regarding duty of mothers to
their own fetuses, this is the strongest argument with which to prove Phoebe
had a duty to Stephanie. I think a
court in California would definitely find a duty on behalf of Phoebe simply
because the supreme court has an interest in preserving surrogacy contracts.[43]
b. Standard
of Care
Generally,
negligence liability only flows where a defendant’s conduct has fallen below
the relevant standard of care.[44] The standard of care in most cases is
that of a reasonable person or what “caution as a man of ordinary prudence
would observe.”[45] This case is a little different because
we are contemplating two different negligence actions which arose out of a
contract.
1. Standard
of Care -- You and Frank v. Phoebe
In
the case of you and Frank versus Phoebe, the standard of care was established
by the contract. Phoebe entered
into a contract where by she would agree “to do everything reasonably
appropriate for her good health and the good health of the fetus during
pregnancy.” Therefore we
would establish the standard of care in this situation as requiring Phoebe to
do as that of a reasonable pregnant woman in similar circumstances.
2. Standard of Care – Stephanie v. Phoebe
In
the case of Stephanie versus Phoebe, the standard of care could vary greatly
based on the existing case law. As
noted supra, the standard of care is objective and that of a
reasonable person. But certain
circumstances involve a different standard of care being applied. Given that
your situation concerns a special type of relationship involving the gestation
of a life, one could argue that there should be a heightened standard of
care. The Chenault
court considered that the most appropriate standard of care for a similar case,
if allowed, would be that of a reasonable pregnant woman.[46] This standard of care would take into
account that the woman is making decisions as a pregnant woman.[47] The court posited the questions
of “would a woman be forced to endure pain and suffering or even forego
critical medical treatment because of potentially adverse effects the treatment
may have on her fetus?” and “Should a woman be forced to consider whether a
jury would find her decision “reasonable” before she decides to accept or
reject treatment?.”[48] These questions pose some difficult
issues to consider. While the facts of the case state that Phoebe chose these
massage and acupuncture procedures because she was in extreme pain while
pregnant, it might be the case that the choice to undergo treatment would
violate a reasonable pregnant woman standard simply because this standard seems
to indicate that care of the fetus is the most important. Phoebe chose not what a reasonable
pregnant woman would do, but what a reasonable woman would do. Note that neither of these standards of
care take into account the intentions Phoebe may have had. While she did think that these
procedures would help the child, they are irrelevant. Ultimately, if a reasonable pregnant woman standard of care
is decided by the judge as the appropriate standard, it may cause some very
unpredictable results. Inevitably, breach of the standard of care is a fact
issue for the jury. Jurors will
apply their own personal views to the facts presented. This alone could render even having a
reasonable pregnant woman standard meaningless.
It
could be contended that neither the reasonable person standard nor the
reasonable pregnant person standard will be applicable. The professional standard could be
applied where courts defer to the expertise and custom of the profession to
determine the standard. [49] Phoebe’s compliance with the custom of
the profession would insulate her from liability. But Phoebe has some obstacles to overcome. First, the
professional standard has traditionally applied to doctors, lawyers,
architects, etc who have had advanced specialized training.[50] In this instance, Phoebe is a massage
therapist and the standard might not be applicable to this profession. The result is also the same as treating
Phoebe as a professional surrogate mother. Being a surrogate mother does not require any specialized
training – only a healthy body.
Additionally, the possibility of using the professional standard with
regard to massage therapy is removed when we consider that Phoebe was not
acting in a professional capacity.
Phoebe was not performing these techniques for a patient and therefore
the professional standard is inapplicable here.
While
she was acting in a professional capacity for you and Frank as a surrogate
mother, I think a court would have a difficult time using a professional standard
for policy reasons. The court
would need to call other surrogate mothers, doctors, etc to establish the
requisite standard in the professional community.[51] Since most surrogacy relationships
involve intricate and specialized contracts, it would be hard to generalize a
standard for the profession as a whole.
This also relates to the inherent policy that despite the fact that
these contracts are valid, they are not mainstream in American society. The American public is not perfectly
comfortable with these arrangements yet. Also, by allowing a professional
standard for negligence cases, it might be too much of the judiciary meddling
into areas that are not best for judicial input or activism. This might by an
issue left best for the legislature when and if they decide to regulate
surrogacy contracts.
The
most appropriate standard for this case is the reasonable pregnant woman
standard whereby we assess if Phoebe’s actions were not in accord with what a
reasonable pregnant woman would do in similar circumstances. I believe the court will chose this
standard because it takes into account the physical condition Phoebe was in at
the time of the negligence and also reflects the terms of the surrogacy
contract
c. Breach
of the Standard of Care
Having
established that in both of the actions, the requisite level of care is that of
a reasonable pregnant woman in the same or similar circumstances, the jury (if
there is one) will be charged with deciding if Phoebe deviated from this
standard by engaging in the massage and acupuncture treatments. It is likely that we will have Phoebe’s
physician to testify on the medical implications of these actions. Additionally, there are several
relevant facts that will serve in our favor. First, the fact that Phoebe did not disclose her actions
until after some time goes to the fact that she may have even known the
treatments were unreasonable.
Secondly, the fact that Phoebe has previously been a surrogate mother
and is a massage therapist is an indication that she had a lot more knowledge
about these techniques and their implications than the average person. As such, we would expect Phoebe to
explore these techniques and their ramifications more than the average person.[52]
While
Phoebe’s profession alone did not establish a professional standard of care, it
is enough to realize that Phoebe can be held accountable for her professional
knowledge.[53] In Hill v. Sparks, the
court stated that special abilities are relevant in determining if there is a
breach from the standard of care.[54]
“If the actor has in fact more than the minimum of these qualities, he is
required to exercise the superior qualities that he has in a manner reasonable
under circumstances.”[55] It is noted that Phoebe has been a
surrogate mother before and this experience has primed her for gauging future
pregnancies. Therefore, Phoebe’s
experience with prior pregnancies should be relevant in the exploration of the
need or use of bizarre treatments while pregnant. Also due to the fact that Phoebe has professional experience
in massage therapy charges her with the duty to exercise her expertise in
appropriate circumstances. Her
experience may have charged her with the duty to research and explore these
technologies more than the average pregnant woman.
All
of these inquiries are factual and will need to be discovered prior to and
during the trial to assess appropriately if Phoebe did breach the requisite
standard of care.[56] But from this brief recount of facts,
it would probably be safe to assume Phoebe did breach the standard of care with
regard to the acupuncture and massage therapy because the doctor’s research
found that these procedures were dangerous.
d. Was
Phoebe’s breach the cause in fact of Stephanie’s injuries?
To be
liable in tort law, there must be proof that the defendant’s culpable conduct
was the actual cause of the plaintiff’s injury.[57] The applicable test in this case is the
“but-for” analysis.[58] Where the harm would not “have been
sustained even if the actor had not been negligent.”[59] If it were not for Phoebe’s use of the
acupuncture and massage therapies, then Stephanie would not be in her current
condition. This element of
determining liability is very straight forward. It is likely (assuming we meet the breach element above)
that we will have no problems establishing that at least the acupuncture and
massage were the cause in fact of Stephanie’s injuries.
e. Was
Phoebe’s breach the legal cause of Stephanie’s injuries?
Legal
cause is a policy limit on the availability of recovery when there results of a
breach are too far attenuated or remote to justify imposing responsibility on
the defendant.[60] The leading test for proximate cause
focuses on whether the defendant should have reasonably foreseen that her
conduct would cause the consequences suffered by the plaintiff.[61] With the use of the alternative
procedures on a pregnant woman’s belly it is reasonably foreseeable that damage
to the fetus could result. Phoebe
may argue that the extent of the damage could not be attributable to her
conduct. But according to the
relevant law enunciated in Bigbee v. Pacific Telephone & Telegraph,
“foreseeability is not to be measured by what is more probable than not, but
includes whatever is likely enough in the setting of modern life that a
reasonably thoughtful [person] would take account of it in guiding practical
conduct.”[62] So even
though the severe damages might not have been highly probable, it is irrelevant
with regard to the liability imposed on Phoebe. Therefore Phoebe’s actions are probably the legal cause of
Stephanie’s damages.
5. What
damages are available?
Personal
injury victims can be compensated for medical expenses, lost wages, incidental
expenses, and pain and suffering under tort law.[63] In both of these actions, you and
Frank, combined with Stephanie, are seeking damages attributed to the same acts
of negligence. California Cases
have confronted this issue in wrongful life cases.[64] It has been determined that where a
parent or a child has recovered damages in a medical malpractice case, a parent
or child cannot recover duplicate damages.[65] Given the way that damages are awarded
in cases like these, it is prudent to pursue litigation based on the way the
damages are split.
a. Medical
Expenses
With
regard to medical expenses, it is likely that you and Frank can prove you will
need extensive amounts of money for special schooling, doctor visits, etc., to
care for Stephanie up to the age of majority.[66] Stephanie will need medical expenses to
cover her from the age of majority and for the rest of her life. It is likely that if both of you pursue
a cause of action for negligence you will be able to recover medical expenses.
b. Diminished
earning capacity
Recovering
damages of diminished earning capacity due to Phoebe’s negligence is not
applicable to the suit in which you and Frank are plaintiffs because your
earning capacities were not diminished.[67] But in the suit where Stephanie is the
plaintiff, there are many issues that arise. To recover damages for diminished
earning capacity, a plaintiff requires proof of the victim’s specific ability,
skills, and aptitude for a career path prior to the injury.[68] For Stephanie, there is no proof as to
what she would have pursued as a career absent the injuries. It would be very difficult for a court
to assess her diminished earning capacity. There have been some instances where the court relies on
limited data like careers and achievements of family members to determine
diminished earning capacity for children.[69] But this approach is very tenuous at
best. It would be difficult to
prove that Stephanie, absent Phoebe’s negligence, would aspire to the same or
similar careers as that of you and Frank. Therefore, I would predict that the
likelihood of obtaining any damages for diminished earning capacity is low due to
the lack of proof.
c. Incidental
Economic Consequences
Incidental
economic consequence damages include travel to physicians, and other damages
attributable to Phoebe’s negligence.
As long as they can be proven with reasonable certainty, there is no excuse
why you, Frank, and Stephanie cannot recover damages for these minor expenses.
d. Emotional
Damages/Pain and Suffering.
Recovering
emotional damages will be difficult for both sets of plaintiffs. Emotional damages include the mental
distress over an injury and cover loss of enjoyment due to that injury.
1. You
and Frank v. Phoebe
Recovery
for emotional damages by you and Frank are problematic because you are not the
direct victims of Phoebe’s negligence.
Because of Phoebe’s negligence you were deprived of having a healthy
baby. Since the injury caused by
Phoebe was not a direct physical injury to you or Frank, you both would need to
prove the special duty elements for negligent infliction of emotional distress
to obtain emotional damages.[70]
The
fact that this situation arose out of a surrogacy contract is of special
importance. In most cases concerning prenatal injuries, it is the birth mother
of the child trying to recover for the doctor’s negligence in care of the
pregnant mother. Clearly, the
injuries caused by this negligence are the result of a direct physical injury
to a fetus inside the mother’s womb.
Here the case is different where you and Frank, at the time of the
injuries, had no physical or even legal relationship to the child because the
child did not even exist.
Perhaps
an action for negligent infliction of emotional distress could be proven, but
given that the requirements for emotional damages are based on cases involving
bystander accidents, it would be difficult to analogize. In establishing emotional damages for
bystanders, California follows the minority rule in Dillon v. Legg.[71]
You and Frank would need to prove that you saw or perceived Phoebe’s negligent
actions, you had shock from observance of the accident, and you were closely
related to the victim.[72] Since you were not even aware that
Phoebe had incurred the massage and acupuncture treatment until after the
pregnancy, it is unlikely that you can recover emotional distress damages.
2. Stephanie
v. Phoebe
As
mentioned supra, emotional damages can be recovered for loss of enjoyment
due to injuries caused by the plaintiff.
One court has held that in order to recover for loss of enjoyment or
pain and suffering, the plaintiff must be cognitively aware that they are
losing enjoyment of life.[73] Stephanie will have to prove that she
knows that she is losing enjoyment of life due to Phoebe’s behavior. Because Stephanie has lived her entire
life developmentally disabled, it might be difficult to prove that Stephanie
realizes she has lost any enjoyment of life. Conversely, Stephanie can prove
that she will notice other children her same age as not having the same
impairments and therefore will be able to notice that she does not have the
full enjoyment of life that other children have. This is probably the most likely situation to result giving
a good chance for Stephanie to recover damages due to pain and suffering.
5. Punitive
Damages
Punitive
Damages are to provide both retribution for the defendant’s wrongful conduct
and to deter future similar conduct.[74] Punitive damages are awarded only in
cases where the plaintiff has engaged in malice, fraud, or oppression.[75] It is extremely unlikely that either
you or Stephanie will be able to recover against Phoebe for punitive damages as
her actions were probably negligent and did not have the requisite malice
needed for punitive damages.
Conclusion
While
the breach of contract case surrounding these facts is relatively
straightforward, these tort cases present a few issues of first impression for
California courts. Since these
negligence actions arise out of a surrogacy relationship, concepts of duty of
care, standard of care and damages seem to be the biggest obstacles to getting
recovery for Stephanie’s injuries.
The facts of your case would be an important test case to see if the
ancient theories surrounding negligence can be applied to cases involving
relationships formed by current reproductive technologies. I suggest that you file a counter suit
as plaintiffs and as guardians on behalf of Stephanie and sue Phoebe under a
theory of negligence.
Sincerely,
Christie Branson
Attorney at Law
[1]
See 851 P.2d 776 (1993).
[2] Id.
[3] Id.
[4] Id. at 784.
[5] Id.
[6] See In re Baby M, 537 A.2d 1227
(1988).
[7] See id.
[8] See id.
[9] Restatement (Second) of Contracts § 235 (1981).
[10] Farnsworth, Contracts
§8.16 (3rd ed. 1999).
[11] See id.
[12] See Boone v. Eyre, 126 Eng.
Rep. 160(a) (K.B. 1777).
[13] See Silva v. Albuquerque
Assembly & Distrib. Freeport Warehouse Corp., 738 P.2d 513 (N.M.
1987).
[14] See Whaley, Douglas, Paying
For The Agony: The Recovery Of Emotional Distress Damages In Contract Actions, 26 Suffolk U. L. Rev. 935 (1992).
[15] Restatement (Second) of Contracts § 353 (1981).
[16] See Chung v. Kaohnohi
Center Co., 618 P.2d 283 (Haw. 1980).
[17] See id.
[18] See Francis v. Lee Enters.,
Inc., 971 P.2d 707, 711 (Haw. 1999)
[19] See Diamond, John et al., Understanding
Torts § 3.01 (1996).
[20] See id.
[21] Restatement (Third) of Torts § 324A (1989).
[22] See id.
[23] See Scott v. McPheeters, 33
Cal. App. 2d 629 (1939).
[24] Cal. Civil Code § 43.1 (West 2001)
[25] See Scott v. McPheeters, 33
Cal. App. 2d 629 (1939).
[26] There is a line of
cases involving a “wrongful life” claim by a child against a negligent
physician. See Turpin v. Sortini, 643
P.2d 954 (Cal. 1982). Essentially the claim is that if it were not for the
physicians negligence, the child would not be born. See id. This is not applicable
here because Stephanie is not alleging that she should have never been born. See
id.
[27] See Prosser And Keeton On The Law Of Torts, § 42 at 273 (W.P.
Keeton, D. Dobbs, R. Keeton & D. Owen 5th ed. 1984)
[28] The cases that have
confronted this issue always mention that since this involves great balancing
of public policy, it should be a decision made by the legislature rather than
the courts. See Bonte for Bonte v.
Bonte, 616 A.2d 464, 466 (N.H.,1992).
[29] See Chenault v. Huie, 989
S.W.2d 474 (5th Dist. 1999).
[30] See id.
[31] See id.
[32] See id.
[33] See id.
[34] See Stallman v. Yougquist,
125 Ill. 2d 267 (Ill. 1988).
[35] See id.
[36] See Grodin v. Grodin, 102
Mich. App. 396 (Mich. Ct. App. 1980) and Bonte v. Bonte 616 A.2d 464, 466 (N.H.
1992).
[37] See id.
[38] See id
[39] Please note that this
line of analysis is applicable only to that of Stephanie’s cause of action
against Phoebe for negligence.
[40] Restatement
(Third) of Torts
§ 324A (1989).
[41] See Scott v. McPheeters, 33 Cal. App. 2d 629 (1939).
[42] While it might be arguable that the fetus is not ‘another’
as stated in §324, many cases have allowed for children to sue their mother’s
obstetrician for damages sustained while they were a fetus. See Renslow v. Mennonite
Hosp., 67 Ill. 2d 348 (Ill. 1977); Turpin v. Sortini, 31Cal. 3d 220 (Cal.
1982).
[43] I think upholding the validity of surrogacy contracts in the Johnson case shows California’s interest in preserving the freedom to contract and use of new reproductive technologies.
[44] See Vaughen v. Menlove, 132
Eng. Rep. 490 (1837).
[45] See id. Physical conditions of defendants (such
as blindness and deafness) are allowed to be taken into consideration when
establishing the standard of care. See Restatement
(Third) of Torts § 283 (1989).
[46] See Chenault v. Huie, 989
S.W.2d 474, 478 (5th Dist. 1999).
[47] See id.
[48] See id.
[49] See Restatement (Third) of Torts § 299A (1989).
[50] See id.
[51] See Restatement (Third) of Torts § 299A Cmt. E (1989) (“[T]he
standard of skill and knowledge required . . . is that which is commonly
possessed by members of that profession or trade in good standing. It is not
that of the most highly skilled, nor is it that of the average member of the
profession or trade, since those who have less than median or average skill may
still be competent and qualified”). Id.
[52] See Hill v. Sparks, 546
S.W. 2d 473, 476 (Mo. Ct. App. 1976).
See also
Restatement (Third) of Torts § 298
Cmt. D (1989).
[53] See id.
[54] See Hill at 476.
[55] Id.
[56] After the necessary
discovery has been accomplished, we would employ the risk calculus in the
seminal case of United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir.
1947). The probability of harm
arising from the activity and magnitude of loss due to the activity is weighed
against the burden of avoidance. See id.
[57] See generally Wex S. Malone, Ruminations in Cause-in-Fact, 9 Stan. L. Rev. 60 (1956).
[58] See Restatement (Third) of Torts § 432(l) (1989).
[59] Id.
[60] See generally Leon Green, The Rationale of Proximate Cause (1927).
[61] See Mauney v. Gulf Refining
Co., 9 So. 2d 780 (Miss. 1942).
[62] 665 P.2d 947 (Cal.
1983).
[63] See Restatement (Third) of Torts § 924 (1989).
[64] See Turpin v. Sortini, 31
Cal. 3d 220 (CA 1982). Wrongful life cases are where absent a physician’s
negligence, a life altering condition would have been discovered in a gestating
fetus and the fetus would be aborted.
See id.
Children born with the ailments sue to recover damages on the theory that they
should have never been born. See id.
[65] See id. at 239.
[66] Ordinarily, a plaintiff
must introduce expert testimony to support the claims for medical expenses. See Callaway v. Miller, 163
S.E.2d 336 (Ga. 1968).
[67] I suppose one could
argue that parenting a child with very severe developmental disabilities
requires that a parent stay home caring for the child and thus lose income
throughout the child’s life. But
damages must be proved with reasonable certainty and this would probably call
for too much speculation by the court.
[68] See Waldorf v. Shuta, 896
F.2d 723 (3d Cir. 1990).
[69] See Roussel v. Berryhill,
444 So. 2d 1286 (La. Ct. App. 1984).
[70] See Klein v. Children’s
Hosp. Med. Center of N. Cal., 54 Cal.Rptr.2d 34 (1st Dist. 1996).
[71] See 669 P. 2d 41 (Cal.
1983).
[72] Id.
[73] See McDougald v. Garber,
536 N.E.2d 372 (N.Y. 1989) (finding that a comatose victim of defendant’s
negligence was incapable of knowing that she had loss enjoyment of life and
therefore not allowed to receive pain and suffering damages).
[74] See Cal. Civ. Code § 3294 (West 2001).
[75] See id.