Minor Abortion Malpractice for Child and Family Restoration

Alisha J. Jackson, Regent Law Juris Doctor Candidate 2013, from Texas, was concerned about the lack of personal injury recovery for children who undergo abortions and are harmed in that process. In our Juvenile Law course she researched the problem and wrote, "Which Cord Do We Cut? An Expansion of Juvenile Protections in Medical Malpractice," an article discussing this problem.

The emerging issue of wrongful birth has gained much publicity in recent months based on an Oregon court’s award of $2.9 million in damages to a plaintiff. Jackson's article discusses the few national cases that clearly address this issue, providing litigators and lawmakers with practical research on this issue in the context of child abortions. The article also provides for many practical remedies that can be easily adapted into the Texas code without major alterations to the structures and malpractice mechanisms already in place.

Jackson analyzes whether the current case law and statutes in Texas promote legal consistency and coherency while simultaneously protecting the best interest of the child for juveniles who engage in their fundamental right to obtain an abortion. Her article further analyzes this issue by examining how current law protects minors with respect to illegal abortions and “wrongful suits,” while exploring possible remedies that promote the best interest of the child by providing legal redress to minors desiring to file a medical malpractice claim based on abortion.

Any abortion to a child is damaging, and illegal in Texas. But when that child is further harmed by medical malpractice in that abortion, limiting recovery effectively protects the malpractice and possibly even the criminal activity. Jackson's article offers hope through the law for restoring those victims. Read her entire article here.


  1. Unfortunately, the link to Ms. Jackson's article is not working.

  2. I read the article. While I appreciate the opinionated writing, I felt that it fell short in this respect. The author makes the move from what the state of things are to what "should be the case," but fails to properly address the question of minority delays in actionable claims after botched procedures.

    The author advances the idea that because it is the case that juveniles have secured the right to bypass parental consent in seeking abortions, then it should be the case that a remedy is made available which allows juveniles to seek legal recourse in cases of botched abortions without parental consent, and without waiting until the age of majority.

    This is not so. Allowing juveniles to seek legal representation without parental guidance is another step toward removing the parental stewardship of the child. It is both unjust and irresponsible to allow a child to seek a medical procedure without parental involvement to begin with, though legal. By further removing the need for parental involvement in litigation meant secure remedies for poor decisions made by a child without parental consent, the parental rights and abilities to nurture and protect their children is doubly removed.

    While it might be true that constitutional rights extend to all people regardless of age, it is also true that the parental responsibility for the welfare of a minor is the pinnacle of sacred rights. When the government intercedes to strip those rights away from parents, they have broken a trust that exceeds the privileges of the state.