The Wisconsin Supreme Court ruled on July 10, 2026, that unborn children are considered patients under state informed consent laws. This decision affects cases where medical treatment is provided during pregnancy, potentially allowing children to pursue legal action against physicians for failure to obtain informed consent. The ruling emerged from the case of Charlie May Brekke v. Midwest Medical Insurance Co., docket number 2023AP000498, which involved a claim of negligence against a physician who delivered Charlie via surrogacy.
Charlie May Brekke, born in 2015, suffered an injury during her birth, leading her to file a lawsuit against Dr. Craig M. Batley and his insurer. The case focused on whether Charlie, as an unborn child, had the right to pursue an informed consent claim against the physician who failed to adequately inform her surrogate mother about the risks associated with the delivery method. The Wisconsin Supreme Court's ruling is significant as it establishes legal precedent regarding the rights of unborn children in medical malpractice cases.
The dispute began when Charlie's surrogate mother, Samantha, was treated by Dr. Batley during her pregnancy. Charlie was delivered via vaginal birth but suffered from shoulder dystocia, resulting in a brachial plexus injury. Charlie's lawsuit claimed that Dr. Batley was negligent in his treatment and failed to obtain informed consent regarding the risks of the delivery method. The circuit court initially dismissed Charlie's informed consent claim, stating that Dr. Batley owed a duty only to Samantha, the mother. This dismissal prompted Charlie to appeal the decision.
The Wisconsin Supreme Court reviewed the case after the court of appeals certified a question regarding the status of unborn children as patients under WIS. STAT. § 448.30. The court ultimately ruled in favor of Charlie, stating, "We hold that Charlie May Brekke was a patient under § 448.30 before her birth." The court emphasized that Dr. Batley had a duty to obtain informed consent from Samantha regarding both her treatment and Charlie's.
The ruling clarified that an informed consent claim is not merely derivative of the mother’s claim but stands on its own. The court noted that Charlie had an independent right to pursue an informed consent claim since she was born alive. This decision reversed the circuit court's earlier ruling and sent the case back for further proceedings on Charlie's informed consent claim.
This ruling has significant implications for medical malpractice cases involving unborn children. It establishes that physicians must provide adequate information to the mother about the risks and benefits of treatments that could affect both her and the unborn child. The court's decision aligns with the evolving understanding of patient rights and medical ethics, recognizing that unborn children deserve legal protections.
Going forward, this ruling may influence how medical professionals approach informed consent, especially in cases involving pregnant patients. It sets a precedent that could lead to increased liability for physicians who fail to adequately inform expectant mothers about treatment options and associated risks. This decision may also encourage more comprehensive discussions between healthcare providers and parents regarding prenatal care.
As for next steps, the case will return to the circuit court for further proceedings on Charlie's informed consent claim. The ruling does not appear to be immediately appealable, but it could pave the way for similar cases in the future. Legal experts anticipate that this decision may lead to more litigation regarding informed consent and the rights of unborn children in Wisconsin and potentially influence other jurisdictions.