Wrongful Birth

Wrongful birth is a cause of action for parents whose child was born with a disability where, during the pregnancy, there were signs or findings that could point to existing or developing defects - for example on an anatomy scan or in a genetic test - but because of negligence in diagnosis, in referring for the tests, or in informing the parents that a test was available, they were deprived of the right to choose whether to continue the pregnancy. The claim is filed by the parents, and the compensation is meant to cover the costs of the child's treatment, supervision and dependency. Eligibility depends on the circumstances of each case.

This is one of the most sensitive areas of Israeli law: it touches on questions of parental choice, disability and life itself. Precisely because of that sensitivity, it is important to understand the cause of action for what it is - a legal tool meant to ensure that a child born with a disability receives the care and resources they need throughout their life.

Want to check whether your case meets the requirements? An initial consultation at no cost, handled with complete sensitivity: 077-4075002 | also available on WhatsApp

Wrongful Birth vs. Wrongful Life - What Have the Courts Ruled?

For years Israeli law recognized two parallel causes of action: the parents' claim ("wrongful birth") and the child's own claim ("wrongful life"). In a leading ruling, the Supreme Court held that the child's cause of action is no longer recognized - but the parents' cause of action was expressly recognized, and the parents are entitled to claim compensation reflecting the costs of raising and caring for the child, including in adulthood. In practice, today the claim is the parents' claim, and it is the main tool for securing the child's financial future.

Requirements for a Wrongful Birth Claim

• A disability that could have been diagnosed - the defect or illness, or signs that could point to it, were detectable during pregnancy by accepted means (scans, genetic tests, monitoring tests)
• Negligence - the treating provider departed from the standard: missed a finding, did not refer for a test, did not inform the parents of the options for further investigation, or did not pass on a result
• Causation - had the parents received the information in time, they could have made a different decision about continuing the pregnancy, in accordance with the law and the circumstances, and a pregnancy termination committee would have approved the termination (not every defect allows a pregnancy to be terminated!)
• Damage - the costs and burden involved in raising a child with a disability

Common Scenarios That Give Rise to a Claim

• A structural defect missed on an anatomy scan - or a finding that was not reported and did not lead to further investigation
• A failure in the genetic chain - no referral to counseling, no information about available tests, a wrong interpretation, or a result that was never passed on
• No referral for investigation despite an abnormal finding - in screening tests, blood tests or routine monitoring
• A failure to inform - parents who were not told about the limitations of the tests performed and about the option of investigating further

What Does Compensation in a Wrongful Birth Claim Cover?

Compensation is derived from the child's needs and from the costs that result from the disability, and may include, among other things: medical and therapeutic expenses not covered by the health fund, nursing care and supervision, equipment and aids, housing and mobility adaptations, the child's potential loss of income, loss of earnings of the caregiving parents, as well as compensation for the violation of autonomy and for pain and suffering. In cases of severe disability the compensation is significant and spread over decades - but every case is examined on its merits, and nothing here promises an outcome.

Limitation Period - A Critical Point in This Cause of Action

Because the claim belongs to the parents - not to the child - the extended limitation rules for minors do not apply to it. As a general rule, the limitation period for the parents' claim begins when the damage becomes known to the parents, and it is seven years long. What this means: in this area you must not wait. Discovering the disability is the moment to seek a legal review - even if you are not yet sure you want to sue.

How Does the Process Work?

1. An introductory meeting and initial review - at no cost: we look at the story of the pregnancy, the tests performed and the diagnosis
2. Collecting records - the pregnancy monitoring file, the scan images, the genetic test results and the counseling summaries
3. Expert opinions - in fetal imaging, genetics or gynecology, depending on where the failure occurred, as well as an assessment of the child's needs
4. Filing and managing the claim - against the institutions and insurers, through negotiation or full legal proceedings

Supporting Families with Sensitivity - Ron-Festinger

A wrongful birth claim is not a statement about the value of the child's life - it is the way the law gives parents to secure care, support and financial security for the child for life. Ron-Festinger Law Office has accompanied families in these cases for more than 40 years, working with leading experts and with the full sensitivity the subject demands. The initial review is free of charge; fees are charged only on success.

Wrongful Birth Cases Handled by Ron-Festinger Law Office

Down Syndrome Not Diagnosed in Pregnancy: An Essential Test Waived Despite Warning Signs

Our office represented parents whose child was born with Down syndrome. During the pregnancy the mother underwent all the recommended tests, and the tests showed an increased risk of the syndrome. The mother also had an anatomy scan in which a heart defect was suspected, but despite the recommendation, the gynecologist persuaded the parents that the test could be skipped.

The parents received compensation of millions of shekels on top of the National Insurance Institute payments.

Wrongful Birth with Skeletal Defects: No Referral for Tests in a Subsequent Pregnancy

In another case our office represented parents who, in a previous birth, had a child with skeletal defects in the limbs. Despite this, in the subsequent pregnancy the parents were not referred to genetic counseling, nor were they referred for a targeted anatomy scan that could have detected the specific defect. As a result, the parents had a child with skeletal defects similar to those of the previous child, who suffers from an orthopedic disability.

The parents received compensation of about one million shekels on top of the National Insurance Institute payments.

A Limb Defect Missed on a Scan: Compensation for a Girl from the Health Fund

In another case handled by our office, the woman had an anatomy scan in which it was recorded that all the long bones were normal, but in fact a girl was born with one short leg, condemning her to a limp and a lifelong disability.

After several hearings the health fund paid the girl millions of shekels for the disability caused to her by the negligent failure.

To schedule an initial consultation: 077-4075002 | also available on WhatsApp

Frequently Asked Questions

Who files the claim - the parents or the child?

The parents. The Supreme Court ruled that the child's own "wrongful life" cause of action is not recognized, but the parents' cause of action - "wrongful birth" - was recognized in a way that the compensation reflects the costs of caring for the child into adulthood as well, and also compensation for the child's loss of income, among other things.

What is the difference between wrongful birth and wrongful life?

"Wrongful birth" is the parents' claim for being deprived of their right to choose, with compensation for the costs of raising the child and the child's loss of income. "Wrongful life" was the child's own claim, in which it was argued that it would have been better for the child not to have been born - a cause of action the Supreme Court held is not recognized in Israeli law. Today the legal route is the parents' claim only.

Do we have to prove that we would have terminated the pregnancy?

The question of causation in this cause of action is complex and sensitive, and the courts have addressed it at length - including the question of whether approval to terminate the pregnancy could have been obtained in the circumstances of the case. In practice, this is one of the issues the attorney examines in the initial review, against the background of the family's circumstances and the applicable law.

What does the compensation cover?

The compensation is meant to cover the costs resulting from the disability: treatments, nursing care and supervision, equipment, housing adaptations, the child's potential loss of earnings, the parents' loss of earnings, and compensation for the violation of autonomy. Its scope is derived from the severity of the disability and the child's needs throughout their life - every case is examined on its merits.

How long do you have to file a wrongful birth claim?

Because this is the parents' claim, the limitation period generally begins when the damage is discovered, lasts seven years, and does not benefit from the extension that usually applies to claims by minors. That is why it is important to seek a legal review as soon as possible after the disability is discovered.

Contact Us for a Consultation

If your child was born with a disability that no one foresaw - you deserve a clear answer about what happened during the pregnancy. An initial consultation at no cost: 077-4075002 | WhatsApp | or leave your details in the form | offices in Jerusalem and Tel Aviv. No Win No Fee.

The information on this page is general information only, does not constitute legal advice and is not a substitute for individual legal advice. Every case is examined according to its circumstances. For a professional assessment of your case, contact us for an initial consultation at no cost and with no obligation.