The Maine law that prohibits the awarding of damages for the so-called wrongful birth of a healthy child except in cases of sterilization is constitutional, a federal judge has ruled in dismissing a Newport mother’s lawsuit.
Kayla Doherty had sued an Albion health care clinic and the maker of a long-term birth control device because she became pregnant while thinking she was using a birth control method that would prevent conception for three years. In fact, the birth-control device had never been inserted into her arm.
She gave birth in June 2014 at age 21 to a healthy boy, whom she is raising alone.
Doherty sued drug manufacturer Merck & Co. Inc., and the United States, which is required by law to defend the Lovejoy Health Center from lawsuits, in federal court in Bangor in 2015 for $250,000.
In January of this year, the Maine Supreme Judicial Court ruled that she could not collect damages under the state’s 1985 wrongful birth law, which states that it is “contrary to public policy to award damages for the birth or rearing of a healthy child.”
Justices found that the statute protected Merck and the federal government from liability and prevented Doherty from collecting damages because the law’s only exception is for permanent sterilization. Long-term birth control devices were not available when the law was passed.
The case, which had earlier been in federal court, returned to federal court so that U.S. District Judge D. Brock Hornby could consider whether the statute violates the U.S. Constitution or the state constitution. He ruled Thursday that it does not.
In their rulings, both Hornby and the state supreme court justices suggested that the Legislature might want to revisit the statute in light of the development of long-term birth-control devices.
“It is clear from the lengths [Hornby] goes to in attempting to distinguish various methods of permanent or semi-permanent contraception that medicine has outstripped the statutory definitions and that further attention to the language of [the wrongful birth statute] is needed,” Maine Supreme Court Justice Andrew Mead wrote in January.
Doherty’s attorney, Laura White of Kennebunk, said she has not decided whether to appeal Hornby’s decision to the 1st U.S. Circuit Court of Appeals in Boston.
“Although we are disappointed with the ruling, it’s clear the court gave these issues careful consideration,” she said. “It’s also encouraging that two decisions have now questioned the wisdom of the wrongful birth statute. We will either accept that and move on with the hope the Maine Legislature will consider amending the law or appeal to the First Circuit.”
Maine Attorney General Janet Mills had intervened in the case on the state’s behalf at Hornby’s request. On Monday she said, “While this lawsuit presented difficult facts, I am pleased that the court upheld the constitutionality of the statute in a clear and concise decision.”
Attorneys for Merck did not respond to a request for comment.