STEWART v. LONG ISLAND COLLEGE HOSPITAL,35 A.D.2d 531[2d Dept 1970]
ROSALYN STEWART, an Infant by Her Parent ROBERT STEWART, Appellant, and
BARBARA STEWART et al., Respondents, v. LONG ISLAND COLLEGE HOSPITAL,
Respondent-Appellant.
Appellate Division of the Supreme Court of New York, Second Department.
In an action to recover damages,inter alia, for failure to perform a "therapeutic abortion", as a result of which the infant plaintiff was born, (1) said plaintiff appeals from so much of a judgment of the Supreme Court, Kings County, entered December 26, 1968, as is in favor of defendant, upon the trial court's direction notwithstanding a jury verdict in favor of said plaintiff, and (2) defendant cross-appeals from so much of the judgment as is in favor of plaintiffs Barbara Stewart and Robert Stewart, the infant plaintiff's parents, upon the jury verdict. Judgment modified, on the law, by deleting therefrom the second and third decretal paragraphs and substituting therefor a provision dismissing the causes of action in the complaint asserted on behalf of plaintiffs Barbara Stewart and Robert Stewart. As so modified, judgment affirmed, without costs. The findings of fact below have not been affirmed. We are in agreement with Trial Term that the cause of action by the infant plaintiff for the defendant hospital's failure to abort her mother and thus terminate her life is not cognizable at law (seeWilliamsv.State of New York,18 N.Y.2d 481;Zepedav.Zepeda,41 Ill. App.2d 240, cert. den.379 U.S. 945;Gleitmanv.Cosgrove,49 N.J. 22). We are also of the view,Page 532however, that the causes of action asserted by the parents may not stand. They assert they have been made to suffer physical pain and mental anguish by virture of defendant's failure to perform an abortion upon the mother, plaintiff Barbara Stewart. Defendant's Abortion Committee was apparently evenly divided as to the necessity or desirability of such an abortion. Two of the four doctors on the committee were apparently unsatisfied that the presence of rubella in the mother had been sufficiently substantiated. The failure to perform an abortion in such circumstance will not give rise to liability (cf.Pikev.Honsinger,155 N.Y. 201). Both the parents and the hospital were aware of the possible dangers of rubella to the unborn child. However, the jury found that a doctor in the hospital failed to inform the mother that she might be able to obtain an abortion elsewhere and advised her not to seek an abortion elsewhere. She was not told of the difference of opinion among the members of the Abortion Committee. The cause of action asserted by the parents, like that of the child, is one not previously known to the law. As such, it should await legislative sanction and should not be accepted by judicial fiat (cf.Williamsv.State of New York,18 N.Y.2d 481,supra;Tobinv.Grossman,24 N.Y.2d 609). This is particularly so when viewed against a backdrop of public policy which at the time declared the proposed abortion to be an illegal one (former Penal Law, § 80). We note that it would be virtually impossible to evaluate as compensatory damages the anguish to the parents of rearing a malformed child as against the denial to them of the benefits of parenthood (seeGleitmanv.Cosgrove,49 N.J. 22,supra). Martuscello, Acting P.J., Latham, Kleinfeld, Brennan and Benjamin, JJ., concur.