There are instances where medical providers may miss signs of severe birth defects in an unborn child. The failure to inform the mother and father of these abnormalities may prevent the parents from making a timely and informed decision on whether to obtain an abortion. West Virginia has recognized a cause of action for “wrongful birth,” which permits the recovery of damages for the “extraordinary costs incurred for rearing a child with birth defects.” James G. v. Caserta, 332 S.E.2d 872 (W.Va. 1985). In such a case the parents are authorized to recover past medical expenses, future medical expenses, lost income, and non-economic damages. West Virginia does not recognize a cause of action for the child.

Under Kentucky law, neither parents or children are permitted to bring claims for wrongful birth against medical providers who fail to properly diagnose fetal abnormalities in time for an abortion. Grubbs ex rel. Grubbs v. Barbourville Family Health Center, P.S.C., 120 S.W.3d 682 (Ky. 2003). Although the Supreme Court of Kentucky would not recognize a tort claim, the court held that the parents might have a breach of contract action against the physicians who offered and charged for diagnostic prenatal testing, yet who allegedly did not perform those services correctly. The court believed that the physicians could be liable for breach of contract under such a circumstance.