The Pfizer Generation: Who Pays For The Babies?

About nine months from now, a new phenomenon may appear at a hospital near you: the Pfizer baby. Why? The drugmaker has taken the embarrassing step of recalling 1 million packets of birth control pills due to a packaging error. Some blister packs may contain an inexact count of active ingredient tablets and, as a result, the tablets may be out of sequence. This may cause unwanted pregnancies (back story).

This is, of course, a potentially serious matter. For its part, the drugmaker is trying to be responsive, as the video clip featuring Pfizer chief medical officer Freda Lewis-Hall indicates. But the episode does raise several questions, including liability. Pfizer has already acknowledged a mistake. And after all, any pregnancy that occurs would have been unintentional – there was a reason that women were taking the pills and having a baby was, presumably, not on the list. Yet, we also know that some women will not get an abortion. Or if they are willing, they are unable to do so in certain places.

Already, lawyers have posted the news on their web sites and one lawyer tells Fox News there may be “very significant verdicts” against Pfizer. “In essence a person takes birth control pills so they don’t have to address issues that, as a result of the pill not working, they’re now going to have to address,” says Greg Gianforcaro, a litigation attorney in New Jersey. “We’re looking at, how do you put a price tag on a child’s education, a child’s upbringing and other costs – initially, for diapers, then for sneakers, and then 20 years later, college and marriage?”

Such lawsuits do get filed. For instance, a woman in Georgia last fall charged several companies, including Endo Pharmaceuticals, with being negligent for selling birth control pills that were incorrectly packaged. As a result, she is pregant and “has suffered, and may suffer, bodily injury resulting in pain and injury, mental anguish, loss of capacity for the enjoyment of life, expensive health care and treatment, loss of earnings, and loss of ability to earn money, according to the lawsuit.

However, liability may be modest, according to Slate, which writes that “damages in wrongful pregnancy cases are usually limited to replacement contraception, the cost of prenatal care, labor and delivery expenses, and sometimes a small award for emotional distress. If the woman chooses to terminate the pregnancy, courts usually won’t force the defendant to pay for an abortion.”

Why? For one thing, a birth control pill is not 100 percent effective (see this), which could make it harder to argue that an unwanted pregnancy was definitively caused by the Pfizer mishap. And the drugmaker could argue that women failed to take their pills on schedule, or missed some dosages, Gianforcaro notes.

And Slate rang two law professors who indicated that judges generally are unwilling to view life itself as a type of damage and that “the costs of raising a child are offset by the joys of parenting.” Or as Gianforcaro frames the point: “having children could be associated with inherent benefits that outweigh the costs.”

This suggests that Pfizer would not be on the hook for all those other expenses, such as clothes, child care, toys, food, lessons, camps and, in some cases, private school. Of course, such logic overlooks the fact that the women were using birth control pills because they did not want to get pregnant. But what do you think?

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