California has a healthy child been allowed a right to recover against a health care provider. While California courts have recognized a right of action in parents for the wrongful birth of a child, as for example, where a normal child is born following a negligent sterilization procedure, see Custodio v. Bauer, 251 Cal. App. 2d 303, 54 Cal. Rptr. 463 (1967), or a negligently performed abortion, no right of the child not to be born of the child has been recognized. Witken says that recovery by the child in such cases has been uniformly denied because " a legal remedy contradicts the fundamental belief that human life has value." He also says that "there can be no evaluation of a claimed right not to be born." In such cases, Bopp, Bostrom and McKinney say that "the pregnancy and delivery are asserted to be the wrong, not the resulting life. Damages are usually limited to the pain and suffering of pregnancy and delivery, lost, wages, and loss of consortium."
In those cases which have allowed a child whose defects at birth were caused by the negligence of the health-care provider, proximate cause must be proven. In Simmons v. West Covina Med. Clinic, (1989) 212 C.A. 3d 696 C.A. 3d 696, 260 C.R. 772, a negligence action was brought against a physician and a hospital for failure to inform the mother of the need for a second blood sample to be taken for a alpha-feloprotein screening test (AFP) which might have shown that the child could inherit Down's Syndrome. The evidence showed that only 20 to 40 percent of AFP tests identify pregnant women at risk with Down's Syndrome. The appellate court held that proximate cause had not been established and denied recovery to the parent and the child.
It said : "we think tort principles fairly impose liability only where there is a reasonable medical probability of predicting the outcome of the pregnancy." Bopp, Bostrom and McKinney say that "the problem with the AFP screening program i
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