By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC To preserve the distinction established in Siemieniec v. Lutheran General Hospital, 117 Ill. 2d 230 (1987), between wrongful birth and wrongful life, the supreme court now has held that parents may not recover damages for the extraordinary expenses of caring for a disabled child after he reaches the age of majority.  The court, however, found it had erred in Siemieniec in applying a zone-of-danger analysis to bar recovery for emotional distress damages where the plaintiff alleges a tort separate from negligent infliction of emotional distress. In Clark, the plaintiffs alleged that their physicians had incorrectly informed them that their first son’s developmental delays were not caused by a genetic disorder.  The plaintiffs then had a second son with the same permanently disabling condition.  The parents filed suit against Children’s Memorial Hospital, a geneticist and other defendants.  The circuit court dismissed the third amended complaint in which the plaintiffs alleged negligent infliction of emotional distress and wrongful birth. First, concerning the recovery of extraordinary expenses associated with the genetic disorder, the court relied on the general common law rule that parents have no obligation to support their adult children and found that the exceptions to the general rule are codified into narrow statutory exceptions not applicable here.  The court reasoned that if the parents voluntarily accepted the burden of supporting their child after he reaches the age of majority, their willingness to do so in the absence of a legal obligation was not caused by the defendants. The court concluded that the public policy of Illinois favors disallowing claims for wrongful life.  Were it to hold wrongful birth defendants liable to parents for a disabled child’s post-majority expenses, the court reasoned that it would “obscure the distinction” made in Siemieniec between wrongful birth, brought by parents who allege that a defendant’s negligence in advising of the risk of giving birth to a child with a genetic disorder, and wrongful life, a child’s claim that a medical professional’s error resulted in his birth. Overruling Siemieniec on a different point, the court also ruled that plaintiffs could seek emotional distress damages as direct victims of the tort of wrongful birth.  The court attributed an erroneous application of the zone-of-danger rule in Siemieniec to the questions that had been certified in that appeal, which appeared to treat the claim for emotional distress as a separate tort.  Reasoning that damages for emotional distress are available to plaintiffs involving other personal torts, such as, for example, medical negligence or defamation, the court found the zone-of-danger rule applicable only where the plaintiff’s theory of liability was limited to the negligent infliction of emotional distress.  Where, as here, a separate tort is alleged, emotional distress damages potentially are available. Dissenting on the issue of post-majority extraordinary medical and educational costs attributable to birth defects, Justice Charles Freeman framed negligence law as, traditionally, a matter for the judiciary; accordingly, he found the majority’s emphasis on a legislative analysis misplaced.  In Justice Freeman’s view, the only way to compensate the plaintiffs for the injury they sustained was to allow them to recover extraordinary costs for as long as their child lives. Opinion 108656 Case summary