MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	   2017	ME	19	
Docket:	     Fed-16-14	
Argued:	     September	8,	2016	
Decided:	    January	26,	2017	
	
Panel:	      	SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,*	JABAR,	and	HUMPHREY,	JJ.	
Majority:	   	SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.	
Concurrence:		SAUFLEY,	C.J.,	and	ALEXANDER	and	GORMAN,	JJ.	
	
                                      KAYLA	DOHERTY	
                                              	
                                             v.	
                                              	
                                    MERCK	&	CO.,	INC.,	et	al.	
	
	
MEAD,	J.	

         [¶1] After	Kayla	Doherty	gave	birth	to	a	healthy	son	in	June	2014,	she	

filed	 a	 complaint	 against	 Merck	 &	 Co.,	 Inc.,	 and	 the	 United	 States	 in	 the	

United	 States	 District	 Court	 for	 the	 District	 of	 Maine,	 alleging	 that	 in	

February	2012,	at	a	community	health	center	for	which	the	United	States	was	

responsible,	 a	 physician	 negligently	 failed,	 as	 a	 result	 of	 Merck’s	 defective	

applicator,	to	insert	into	her	arm	an	implant	manufactured	by	Merck	that	was	

designed	 to	 prevent	 pregnancy	 for	 at	 least	 three	 years.	 	 Pursuant	 to	




     *		Although	not	available	at	oral	argument,	Justice	Gorman	participated	in	the	development	of	this	

opinion.		See	M.R.	App.	P.	12(a)	(“A	qualified	justice	may	participate	in	a	decision	even	though	not	
present	at	oral	argument.”).	
		
2	

4	 M.R.S.	 §	 57	 (2016)	 and	 M.R.	 App.	 P.	 25,	 the	 federal	 court	 (Hornby,	 J.)	 has	

certified	three	questions	of	state	law	to	us:	

       1.	 	 Does	 the	 protection	 of	 Maine’s	 Wrongful	 Birth	 statute,	
       24	M.R.S.A.	§	2931,	extend	to	the	defendant	Merck	&	Co.,	Inc.,	as	a	
       drug	manufacturer	and	distributor?	
       	
       2.	 	 If	 not,	 does	 the	 Law	 Court’s	 decision	 in	 Macomber	 v.	 Dillman,	
       505	A.2d	810	(Me.	1986),	which	concerned	a	failed	sterilization	by	
       a	health	care	provider,	apply	to	the	plaintiff	Kayla	Doherty’s	claim	
       against	Merck	as	a	drug	manufacturer	and	distributor?	
       	
       3.	 	 Does	 Maine’s	 Wrongful	 Birth	 statute	 prohibit	 all	 recovery	 for	
       Doherty	 against	 both	 defendants	 (Merck	 if	 it	 is	 covered	 by	 the	
       statute,	 see	 question	 one,	 supra)	 because	 of	 the	 nature	 of	 the	
       procedure	she	underwent?		Or	does	the	statute	allow	Doherty	to	
       proceed	with	her	claims	but	limit	the	recoverable	damages	to	her	
       expenses	 incurred	 for	 the	 procedure	 and	 pregnancy,	 pain	 and	
       suffering	 connected	 with	 the	 pregnancy,	 and	 loss	 of	 earnings	
       during	pregnancy?	
       	
	      [¶2]	 	 We	 answer	 the	 first	 question	 in	 the	 affirmative.	 	 Accordingly,	 we	

decline	 to	 answer	 the	 second	 question.	 	 In	 answer	 to	 the	 third	 question,	

pursuant	to	24	M.R.S.	§	2931	(2016)	Doherty	may	not	recover	any	damages	on	

her	claims	against	either	defendant.	

                                   I.		BACKGROUND	

	      [¶3]	 	 The	 United	 States	 District	 Court	 denied	 without	 prejudice	 the	

defendants’	 motion	 to	 dismiss	 Doherty’s	 complaint.	 	 The	 court	 stated	 in	 its	

certification	to	us	that	“the	following	factual	allegations	are	properly	pleaded.		
                                                                                         3	

The	plaintiff’s	factual	allegations	are	therefore	taken	as	true	for	the	purpose	of	

testing	 the	 defendants’	 argument	 that	 Maine	 law	 allows	 no	 recovery	 to	 the	

plaintiff	 even	 if	 her	 allegations	 are	 proven.”	 	 See	 Miller	 v.	 Town	 of	 Wenham,	

833	F.3d	46,	51	(1st	Cir.	2016)	(stating	that	in	reviewing	the	dismissal	of	a	claim	

pursuant	 to	 Fed.	 R.	 Civ.	 P.	 12(b)(6),	 the	 federal	 courts	 “accept	 as	 true	 all	

well-pled	facts	alleged	in	the	complaint	and	draw	all	reasonable	inferences	in	

the	plaintiff’s	favor”	(alteration	and	quotation	marks	omitted)).	

	     [¶4]		Doherty’s	complaint	alleges	that	on	January	26,	2012,	she	visited	a	

federally-supported	health	care	center	in	Albion	to	inquire	about	birth	control	

options.	 	 She	 saw	 a	 physician,	 who	 recommended	 the	 use	 of	 an	 implantable	

drug	manufactured	by	Merck	consisting	of	a	single,	four-centimeter-long	rod	

inserted	 under	 the	 skin	 of	 the	 inner	 side	 of	 the	 patient’s	 upper	 arm	 with	 a	

syringe-like	applicator.		The	drug,	which	is	designed	to	be	effective	for	at	least	

three	 years	 unless	 the	 rod	 is	 removed	 sooner	 by	 a	 physician,	 works	 by	

inhibiting	ovulation.		Merck	knew,	or	should	have	known,	that	the	applicator	

had	a	history	of	failed	insertion	attempts	occurring	when,	unbeknownst	to	the	

treating	physician,	the	rod	would	remain	stuck	in	the	applicator	following	the	

procedure.	
4	

	     [¶5]		On	February	28,	2012,	the	physician	who	recommended	the	drug	to	

Doherty	carried	out	the	implantation	procedure,	but	failed	to	check	her	arm	to	

see	 if	 it	 was	 successful.	 	 A	 pregnancy	 test	 at	 the	 health	 care	 center	 on	

October	16,	2013,	confirmed	that	Doherty	was	pregnant.		An	examination	and	

subsequent	 ultrasound	 examination	 failed	 to	 locate	 the	 rod	 in	 either	 of	

Doherty’s	arms.		A	nurse	later	told	Doherty	that	the	physician	“believes	it	was	

never	inserted.”	

      [¶6]		On	June	9,	2014,	Doherty	gave	birth	to	a	healthy	boy	following	a	long	

and	 painful	 delivery.	 	 In	 connection	 with	 her	 pregnancy,	 Doherty	 suffered	

nausea,	mental	and	physical	pain	and	suffering,	insomnia,	swelling,	and	weight	

gain.		She	also	incurred	expenses,	and	she	lost	wages	as	a	result	of	missing	work	

for	 medical	 appointments.	 	 Following	 the	 birth	 of	 her	 son,	 Doherty	 received	

mental	health	counseling	and	suffered	emotional	distress	as	a	result	of	being	

unprepared	to	raise	a	child	as	a	single	mother.	

	     [¶7]	 	 Doherty	 filed	 suit	 against	 Merck	 on	 theories	 of	 strict	 product	

liability,	breach	of	warranty,	negligence,	and	negligent	misrepresentation;	and	

against	 the	 United	 States	 for	 the	 negligence	 of	 the	 physician,	 and	 for	 the	

physician’s	failure	to	obtain	her	informed	consent.		The	complaint	also	asked	

the	 federal	 court	 to	 declare	 that	 24	 M.R.S.	 §	 2931	 is	 unconstitutional,	 both	
                                                                                          5	

facially	 and	 as	 applied.	 	 Merck	 and	 the	 United	 States	 moved	 to	 dismiss	 the	

complaint	on	the	grounds	that	(1)	pursuant	to	24	M.R.S.	§	2931(1),	the	birth	of	

a	 healthy	 child	 is	 not	 a	 “legally	 recognizable	 injury”	 for	 which	 Doherty	 may	

recover	 damages;	 and	 (2)	 pursuant	 to	 24	 M.R.S.	 §	 2931(2),	 Doherty	 did	 not	

undergo	 a	 “failed	 sterilization	 procedure”	 that	 would	 invoke	 the	 statute’s	

exception	 and	 allow	 her	 to	 recover	 limited	 damages.	 	 The	 court	 denied	 the	

motions	pending	our	answers	to	the	three	certified	questions.	

                                    II.		DISCUSSION	

A.	    Acceptance	of	the	Certified	Questions	

	      [¶8]		A	threshold	issue	is	whether	we	will	agree	to	consider	the	certified	

questions.		See	Bankr.	Estate	of	Everest	v.	Bank	of	Am.,	N.A.,	2015	ME	19,	¶	13,	

111	 A.3d	 655	 (“Title	 4	 M.R.S.	 §	 57	 authorizes,	 but	 does	 not	 require,	 us	 to	

consider	 a	 certified	 question	 of	 state	 law	 posed	 by	 a	 federal	 court	 in	 certain	

circumstances.”	(quotation	marks	omitted)).		In	resolving	that	issue,		

       [w]e	 may	 consider	 the	 merits	 of	 a	 certified	 question	 from	 the	
       United	 States	 District	 Court	 and,	 in	 our	 discretion,	 provide	 an	
       answer	if	(1)	there	is	no	dispute	as	to	the	material	facts	at	issue;	
       (2)	there	is	no	clear	controlling	precedent;	and	(3)	our	answer,	in	
       at	least	one	alternative,	would	be	determinative	of	the	case.	
       	
       	      We	have	stated	that	wherever	reasonably	possible,	the	state	
       court	 of	 last	 resort	 should	 be	 given	 [the]	 opportunity	 to	 decide	
       state	law	issues	on	which	there	are	no	state	precedents	which	are	
       controlling	or	clearly	indicative	of	the	developmental	course	of	the	
6	

       state	law	because	this	approach	(1)	tends	to	avoid	the	uncertainty	
       and	 inconsistency	 in	 the	 exposition	 of	 state	 law	 caused	 when	
       federal	courts	render	decisions	of	state	law	which	have	an	interim	
       effectiveness	until	the	issues	are	finally	settled	by	the	state	court	of	
       last	 resort;	 and	 (2)	 minimizes	 the	 potential	 for	 state-federal	
       tensions	 arising	 from	 actual,	 or	 fancied,	 federal	 court	 efforts	 to	
       influence	the	development	of	state	law.	
       	
Id.	¶¶	13-14	(alterations,	citation,	and	quotation	marks	omitted).	

	     [¶9]		Here	there	is	no	dispute	as	to	the	facts	to	be	accepted	as	true	at	this	

stage	 of	 the	 case;	 no	 clear	 controlling	 precedent	 that	 would	 answer	 the	

questions;	and	one	alternative	that	would	be	determinative	of	the	case,	in	that	

the	federal	court	stated	in	its	certification	that	“a	decision	by	the	Law	Court	that	

no	recovery	is	available	to	the	plaintiff	under	Maine	law	even	if	all	her	factual	

allegations	are	true	.	.	.	would	be	determinative	of	the	cause	and	would	end	the	

lawsuit	now.”		Therefore,	we	agree	to	consider	the	certified	questions.	

B.	   Scope	of	24	M.R.S.	§	2931	

	     [¶10]		Maine’s	“wrongful	birth”	statute	provides,	in	part:	

      §	2931.		Wrongful	birth;	wrongful	life	
      	
         1.		Intent.		It	is	the	intent	of	the	Legislature	that	the	birth	of	a	
      normal,	 healthy	 child	 does	 not	 constitute	 a	 legally	 recognizable	
      injury	and	that	it	is	contrary	to	public	policy	to	award	damages	for	
      the	birth	or	rearing	of	a	healthy	child.	
      	
         2.		Birth	of	healthy	child;	claim	for	damages	prohibited.		No	
      person	 may	 maintain	 a	 claim	 for	 relief	 or	 receive	 an	 award	 for	
      damages	based	on	the	claim	that	the	birth	and	rearing	of	a	healthy	
                                                                                        7	

     child	resulted	in	damages	to	him.		A	person	may	maintain	a	claim	
     for	relief	based	on	a	failed	sterilization	procedure	resulting	in	the	
     birth	 of	 a	 healthy	 child	 and	 receive	 an	 award	 of	 damages	 for	 the	
     hospital	 and	 medical	 expenses	 incurred	 for	 the	 sterilization	
     procedures	and	pregnancy,	the	pain	and	suffering	connected	with	
     the	 pregnancy	 and	 the	 loss	 of	 earnings	 by	 the	 mother	 during	
     pregnancy.	
        	
        .	.	.	.	
        	
24	M.R.S.	§	2931(1)-(2).	

      [¶11]		The	first	certified	question	asks	whether	section	2931	applies	to	

Merck.		We	have	often	said	that	“[i]n	interpreting	a	statute,	we	seek	to	effectuate	

the	 intent	 of	 the	 Legislature,	 which	 is	 ordinarily	 gleaned	 from	 the	 plain	

language	 of	 the	 statute.	 	 We	 will	 not	 look	 beyond	 the	 plain	 language	 of	 the	

statute	if	it	is	unambiguous.”		State	v.	Knight,	2016	ME	123,	¶	9,	145	A.3d	1046.	

(citation	and	quotation	marks	omitted).	

      [¶12]		Section	2931	is	not	at	all	ambiguous	in	that	it	bars	a	specific	legal	

claim	regardless	of	the	party	that	the	claim	is	brought	against:	“No	person	may	

maintain	a	claim	for	relief	or	receive	an	award	for	damages	based	on	the	claim	

that	 the	 birth	 and	 rearing	 of	 a	 healthy	 child	 resulted	 in	 damages	 to	 him.”		

24	M.R.S.	§	2931(2).		Consistent	with	the	Legislature’s	stated	public	policy—

“the	birth	of	a	normal,	healthy	child	does	not	constitute	a	legally	recognizable	

injury,”	24	M.R.S.	§	2931(1)—the	statute	addresses	only	the	basis	for	the	claim,	
8	

not	 the	 identity	 of	 the	 defendant.	 	 In	 the	 case	 of	 a	 legislative	 public	 policy	

decision,	

    [w]hen	it	is	clear	that	the	Legislature	enacted	specific	legislation	to	
    remedy	 an	 existing	 problem,	 social	 or	 otherwise,	 such	 statutory	
    enactment	 must	 be	 construed	 so	 as	 to	 promote	 the	 policy	
    consideration	 which	 brought	 about	 the	 Legislature’s	 action.	 .	 .	 .	
    We	 must	 look	 to	 the	 end	 which	 our	 Legislators	 sought	 in	 the	
    enactment	 of	 the	 law	 and	 approve	 a	 construction	 which	 will	 not	
    nullify	its	purpose.	
    	
Waddell	v.	Briggs,	381	A.2d	1132,	1135	(Me.	1978).	

         [¶13]		Here,	Doherty	claims	that	she	is	entitled	to	damages	resulting	from	

injuries	 that	 she	 suffered	 when	 the	 failure	 of	 Merck’s	 product	 resulted	 in	 a	

non-remarkable	 pregnancy	 leading	 to	 the	 birth	 of	 her	 healthy	 child.	 	 That	 is	

precisely	the	claim	barred	by	the	very	clear	language	of	the	statute.		Doherty’s	

argument	that	the	statute	applies	to	the	physician	who	treated	her	but	not	to	

Merck	disregards	the	statute’s	declaration	that	the	birth	of	a	healthy	child	is	not	

a	legally	recognizable	injury	ab	initio;	therefore,	it	is	not	actionable	against	any	

defendant.	 	 As	 a	 result,	 unless	 the	 “failed	 sterilization	 procedure”	 exception	

contained	 in	 section	 2931(2)	 and	 discussed	 infra	 applies,	 Doherty	 may	 not	

recover	 damages	 against	 either	 Merck	 or	 the	 United	 States	 for	 the	 birth	 and	

expense	of	raising	her	healthy	child.1	


     1		In	her	brief	Doherty	argues	that	not	all	claims,	and	by	implication	not	all	damages,	are	barred	by	

the	statute.		She	does	not	specify	the	damages	that	would	conceivably	remain	once	all	damages	for	
                                                                                                                 9	

        [¶14]	 	 For	 these	 reasons,	 we	 answer	 the	 first	 certified	 question	 in	 the	

affirmative.	

C.	     Scope	of	Macomber	v.	Dillman	

	       [¶15]	 	 The	 second	 certified	 question	 asks	 whether	 our	 holding	 in	

Macomber	v.	Dillman,	505	A.2d	810	(Me.	1986),	a	case	involving	a	failed	tubal	

ligation	 procedure	 resulting	 in	 the	 birth	 of	 a	 healthy	 child,	 id.	 at	 812,	 is	

applicable	to	Merck.		Because	the	federal	court	conditioned	the	second	question	

upon	 a	 negative	 answer	 to	 the	 first	 question,	 and	 we	 have	 answered	 that	

question	in	the	affirmative,	we	do	not	answer	the	second	question.2	




“the	birth	and	rearing	of	a	healthy	child,”	24	M.R.S.	§	2931(2)	(2016),	are	excluded.		In	any	event,	that	
the	Legislature	in	section	2931(2)	created	a	very	specific	category	of	damages—“the	hospital	and	
medical	 expenses	 incurred	 for	 the	 sterilization	 procedures	 and	 pregnancy,	 the	 pain	 and	 suffering	
connected	with	the	pregnancy	and	the	loss	of	earnings	by	the	mother	during	pregnancy”—that	are	
available	in	a	very	specific	and	limited	circumstance,	namely	when	“a	failed	sterilization	procedure	
result[s]	in	the	birth	of	a	healthy	child,”	means,	employing	well-recognized	principles	of	statutory	
construction,	that	those	are	the	only	damages	that	may	be	awarded	as	a	result	of	claims	arising	from	
the	birth	of	a	healthy	child.		See	Musk	v.	Nelson,	647	A.2d	1198,	1201	(Me.	1994)	(“[A]	well-settled	
rule	of	statutory	interpretation	states	that	express	mention	of	one	concept	implies	the	exclusion	of	
others	 not	 listed.”);	 Lee	 v.	 Massie,	 447	 A.2d	 65,	 68	 (Me.	 1982)	 (“[T]he	 maxim[]	 expressio	 unius	 est	
exclusio	alterius	.	.	.	is	regarded	as	well	recognized	in	Maine.”	(quotation	marks	omitted)).		We	said	as	
much	in	Thibeault	v.	Larson:	“As	expressed	in	[24	M.R.S.	§	2931]	subsections	(1)	and	(2),	the	birth	of	
a	healthy	child	is	not	a	legally	cognizable	injury	and	an	action	may	 only	be	maintained	for	limited	
damages	if	the	healthy	child	is	born	as	a	result	of	a	failed	sterilization.”		666	A.2d	112,	115	(Me.	1995)	
(emphases	added).	
   	
   2		We	note,	in	any	event,	that	because	the	Legislature	has	occupied	the	field	on	this	issue	in	enacting	

section	2931,	Macomber	no	longer	has	any	independent	jurisprudential	vitality.	
10	

D.	   The	“Failed	Sterilization	Procedure”	Exception	

	     [¶16]	 	 The	 third	 certified	 question	 asks	 if	 the	 single	 exception	 to	 the	

statute’s	blanket	prohibition	against	claims	based	on	the	birth	of	a	healthy	child	

is	applicable	on	these	facts.		The	relevant	section	provides:	

     No	person	may	maintain	a	claim	for	relief	or	receive	an	award	for	
     damages	based	on	the	claim	that	the	birth	and	rearing	of	a	healthy	
     child	resulted	in	damages	to	him.		A	person	may	maintain	a	claim	
     for	relief	based	on	a	failed	sterilization	procedure	resulting	in	the	
     birth	 of	 a	 healthy	 child	 and	 receive	 an	 award	 of	 damages	 for	 the	
     hospital	 and	 medical	 expenses	 incurred	 for	 the	 sterilization	
     procedures	and	pregnancy,	the	pain	and	suffering	connected	with	
     the	 pregnancy	 and	 the	 loss	 of	 earnings	 by	 the	 mother	 during	
     pregnancy.	
     	
24	M.R.S.	§	2931(2).	

	     [¶17]	 	 The	 term	 “sterilization	 procedure”	 is	 not	 defined	 in	 the	 Maine	

Health	 Security	 Act,	 24	 M.R.S.	 §§	 2501-2988	 (2016),	 where	 section	 2931	 is	

located.		Doherty	argues	that	the	exception	should	apply	here	because	Merck’s	

implantable,	long-term	drug	is	“synonymous	with	sterilization,”	and	therefore	

“the	 only	 reasonable	 interpretation	 of	 [section	 2931]	 is	 that	 the	 term	

‘sterilization	procedure’	.	.	.	applies	to	any	long-lasting	effort	to	render	a	woman	

infertile.”	 	 We	 disagree,	 and	 conclude	 that	 the	 Legislature	 intended	

“sterilization	procedure”	to	include	medical	or	surgical	procedures	that	alter	

the	body’s	anatomy	for	the	purpose	of	permanently	ending	the	possibility	of	
                                                                                      11	

procreation.	 	 The	 term	 does	 not	 include	 temporary	 pharmaceutical	

intervention	in	the	reproductive	process,	such	as	the	implant	Doherty	sought,	

nor	does	it	include	physical	intervention,	such	as	an	intrauterine	device,	that	is	

designed	 to	 be	 reversible	 without	 permanently	 altering	 the	 body’s	

reproductive	organs.		These	are	methods	of	contraception,	and	in	section	2931	

the	 Legislature	 explicitly	 made	 an	 exception	 to	 its	 prohibition	 against	

recovering	 damages	 for	 the	 birth	 of	 a	 healthy	 child	 only	 for	 “sterilization.”		

24	M.R.S.	§	2931(2).	

	     [¶18]	 	 Our	 construction	 is	 supported	 by	 the	 Legislature’s	

near-contemporaneous	 definition	 of	 the	 term	 “sterilization	 procedure[]”	 in	

title	 34-B.	 	 In	 the	 Due	 Process	 in	 Sterilization	 Act	 of	 1982,	 34-B	 M.R.S.	

§§	 7001-7017	 (2016),	 the	 effective	 date	 of	 which	 predated	 the	 enactment	 of	

section	2931	by	two	years,	the	Legislature	stated	that	it	“finds	and	declares	that	

sterilization	 procedures	 are	 generally	 irreversible	 and	 represent	 potentially	

permanent	 and	 highly	 significant	 consequences	 for	 the	 patient	 involved.”		

34-B	 M.R.S.	 §	 7002	 (emphases	 added)	 (enacted	 by	 P.L.	 1983,	 ch.	 459,	 §	 7	

(effective	 Jan.	 15,	 1984)).	 	 The	 Act	 goes	 on	 to	 define	 “[s]terilization”	 as	

“a	medical	or	surgical	procedure,	the	purpose	of	which	is	to	render	an	individual	
12	

permanently	 incapable	 of	 procreation.”	 	 34-B	 M.R.S.	 §	 7003(9)	 (emphases	

added).	

        [¶19]	 	 This	 definition	 was	 known	 to	 the	 Legislature	 when	 it	 enacted	

section	 2931	 just	 two	 years	 later.	 	 See	 Musk	 v.	 Nelson,	 647	 A.2d	 1198,	 1202	

(Me.	1994)	(“The	Legislature	is	presumed	to	be	aware	of	the	state	of	the	law	

and	 decisions	 of	 this	 Court	 when	 it	 passes	 an	 act.”).	 	 During	 that	 short	 time	

interval,	 the	 Legislature	 was	 aware	 that	 traditional	 methods	 of	 sterilization	

such	 as	 tubal	 ligation	 or	 vasectomy	 that	 are	 intended	 to	 be	 permanent	 may	

sometimes	be	reversed,3	yet	it	did	not	include	a	more	expansive	definition	of	

“sterilization	 procedure”	 in	 section	 2931.	 	 Presumably,	 if	 the	 Legislature,	

mindful	 of	 its	 recent	 enactment	 in	 title	 34-B,	 meant	 to	 include	 procedures—

such	 as	 the	 implant	 at	 issue	 here—that	 are	 intended	 to	 be	 reversible	 in	 the	

section	2931(2)	exception,	it	would	have	said	so,	and	not	used	the	same	term	it	

had	recently	defined	to	mean	procedures	that	are	“generally	irreversible,”	and	

“the	 purpose	 of	 which	 is	 to	 render	 an	 individual	 permanently	 incapable	 of	

procreation.”		34-B	M.R.S.	§§	7002,	7003(9).		In	contrast	to	what	the	Legislature	




   3		Indeed,	when	a	court	orders	that	a	sterilization	be	performed,	by	statute	it	“shall	be	the	most	

reversible	 procedure	 available	 at	 the	 time”	 unless	 the	 treating	 physician	 adjudges	 otherwise.		
34-B	M.R.S.	§	7013(6)	(2016).		Nevertheless,	the	Legislature	determined	in	defining	“[s]terilization”	
as	 it	 did	 that	 the	 purpose	 of	 the	 procedure,	 even	 if	 it	 is	 potentially	 reversible,	 “is	 to	 render	 an	
individual	permanently	incapable	of	procreation.”		34-B	M.R.S.	§	7003(6)	(2016).	
                                                                                    13	

explicitly	 defined	 to	 be	 a	 “sterilization	 procedure[],”	 the	 procedure	 that	

Doherty	 underwent	 was	 not	 “generally	 irreversible,”	 nor	 “potentially	

permanent,”	 nor	 intended	 to	 “render	 [her]	 permanently	 incapable	 of	

procreation.”		34-B	M.R.S.	§§	7002,	7003(9).	

      [¶20]		Other	courts	and	authorities	are	in	accord	with	our	conclusion	that	

sterilization	is	commonly	understood	to	mean	a	procedure	that	is	intended	to	

be	 permanent.	 	 See	 Semian	 v.	 Ledgemere	 Transp.,	 Inc.,	 2014	 ME	 141,	 ¶¶	 8-9,	

106	A.3d	405	(stating	that	when	a	statute	is	“reasonably	susceptible	to	different	

interpretations”	the	Law	Court	may	“look	to	extrinsic	information	to	determine	

the	Legislature's	intent”	(quotation	marks	omitted)).	

      [¶21]		In	a	1942	case	where	the	United	States	Supreme	Court	reviewed	

an	Oklahoma	compulsory	sterilization	statute,	Justice	Douglas	emphasized	the	

gravity	of	sterilization	as	a	permanent	procedure,	writing,	“We	are	dealing	here	

with	legislation	which	involves	one	of	the	basic	civil	rights	of	man.	.	.	.	There	is	

no	redemption	for	the	individual	whom	the	law	touches.		Any	experiment	which	

the	State	conducts	is	to	his	irreparable	injury.		He	is	forever	deprived	of	a	basic	

liberty.”		Skinner	v.	Oklahoma,	316	U.S.	535,	541	(1942).	
14	

        [¶22]	 	 Courts	 to	 the	 present	 day	 have	 continued	 to	 recognize	 the	

distinction	 between	 permanent	 sterilization	 and	 reversible	 contraception.4		

In	2010,	the	United	States	Court	of	Appeals	for	the	Third	Circuit,	examining	the	

question	 of	 whether	 the	 compelled	 insertion	 of	 an	 intrauterine	 device	 (IUD)	

constitutes	 sterilization	 for	 the	 purpose	 of	 asylum	 eligibility,	 concluded	 that	

“the	 term	 ‘involuntary	 sterilization’	 by	 definition	 contemplates	 a	 permanent	

inhibition	of	reproductive	capacity,”	and	noted	that	

        [i]ndeed,	taken	to	its	extreme,	[the	applicant’s]	attempt	to	read	the	
        permanency	 out	 of	 "sterilization"	 would	 lead	 to	 such	 bizarre	
        propositions	as	considering	the	use	of	any	contraceptive	.	.	.	to	be	

   4		See,	e.g.,	Huang	v.	Holder,	591	F.3d	124,	129-30	(2d	Cir.	2010)	(“The	BIA’s	[Board	of	Immigration	

Appeals]	reasoning	that	sterilization	makes	one	permanently	incapable	of	having	children,	whereas	
an	IUD	is	a	temporary	measure,	is	reasonable.”);	Chen	v.	Holder,	313	F.	App’x	625,	630	(4th	Cir.	2009)	
(concluding,	upon	reviewing	the	BIA’s	determination	that	“the	sterilization	procedure	.	.	.	leaves	one	
incapable	of	having	children	.	.	.	[and]	IUD	use	should	not	be	treated	as	the	equivalent	of	sterilization,”	
that	 “we	 certainly	 cannot	 say	 that	 [the	 BIA’s]	 interpretation	 is	 unreasonable”	 (alteration	 and	
quotation	marks	omitted));	Gerber	v.	Hickman,	291	F.3d	617,	622	(9th	Cir.	2002)	(“Sterilization	is	
intrusive,	permanent,	and	irreparable.”);	Peck	v.	Califano,	454	F.	Supp.	484,	487-88	(D.	Utah	1977)	
(“unlike	other	contraceptive	or	family	planning	measures,	sterilization	results	in	a	permanent	waiver	
of	the	fundamental	right	to	procreate”	(quotation	marks	omitted));	C.D.M.	v.	State,	627	P.2d	607,	612	
(Alaska	 1981)	 (“Sterilization	 necessarily	 results	 in	 the	 permanent	 termination	 of	 the	 intensely	
personal	 right	 to	 procreate.”);	 Kennedy	 v.	 Kennedy,	 845	 N.W.2d	 707,	 714-15	 (Iowa	 2014)	 (citing	
C.D.M.,	 627	 P.2d	 at	 612,	 as	 well	 as	 a	 source	 describing	 sterilization	 as	 “the	 permanent	 physical	
deprivation	of	a	fundamental	constitutional	right”	(quotation	marks	omitted));	In	re	Moe,	432	N.E.2d	
712,	716	n.3	(Mass.	1982)		(“Sterilization	is	a	surgical	procedure	that,	in	nearly	all	cases,	renders	a	
person	permanently	incapable	of	reproduction.”);	In	 re	Truesdell,	304	S.E.2d	793,	812	(N.C.	Ct.	App.	
1983)	 (“State	 action	 to	 compel	 a	 sterilization	 constitutes	 an	 irreversible	 certainty.	 	 It	 would	
permanently	 and	 irrevocably	 deprive	 [the	 ward]	 of	 her	 procreative	 capacity.”);	 In	 re	 Terwilliger,	
450	 A.2d	 1376,	 1382	 (Pa.	 Super.	 Ct.	 1982)	 (“sterilization	 necessarily	 results	 in	 the	 permanent	
termination	of	the	intensely	personal	right	of	procreation”	(italics	omitted));	In	re	Guardianship	of	
Eberhardy,	307	N.W.2d	881,	897	(Wis.	1981)	(“[S]tate	action	to	authorize	sterilization	constitutes	an	
irreversible	certainty.		It	would	permanently	and	irrevocably	deprive	[the	ward]	of	her	procreative	
capability.”);	see	also	Conservatorship	of	Valerie	N.,	707	P.2d	760,	787	n.9,	788	(Cal.	1985)	(Bird,	C.J.,	
dissenting)	(“Other	methods	of	contraception	do	not	irreversibly	prevent	procreation,	nor	do	they	
require	 the	 surgical	 destruction	 of	 any	 biological	 capacity	 for	 a	 nonmedical	 purpose.	 .	 .	 .	 [T]he	
majority	fail[s]	to	weigh	the	impact	of	the	irreversible	deprivation	of	the	right	to	procreate	.	.	.	.”).	
                                                                                    15	

      “sterilization,”	since	all	contraceptives	inhibit	reproduction.		At	the	
      risk	 of	 stating	 the	 obvious,	 the	 use	 of	 a	 contraceptive	 ordinarily	
      would	not	amount	to	sterilization,	since	sterilization	is	permanent	
      and	irreparable	and	the	use	of	a	contraceptive—even	an	IUD,	which	
      is	designed	to	remain	in	place	until	removed	by	a	physician—is	not.	
      	
	Cheng	v.	Att’y	Gen.,	623	F.3d	175,	182-83,	187	&	n.6	(3d	Cir.	2010)	(alterations,	

ellipsis	and	quotation	marks	omitted).	

      [¶23]	 	 Beyond	 the	 widely-held	 view	 of	 numerous	 courts,	

Black’s	Law	Dictionary	defines	“sterilization”	as	“[t]he	act	of	making	(a	person	

or	 other	 living	 thing)	 permanently	 unable	 to	 reproduce.”	 	 Black’s	 Law	

Dictionary	1640	(10th	ed.	2014)	(emphasis	added);	see	also	Stedman’s	Medical	

Dictionary	1475	(25th	ed.	1990)	(defining	“sterilization”	as	“[t]he	act	or	process	

by	 which	 an	 individual	 is	 rendered	 incapable	 of	 .	 .	 .	 reproduction,	 as	 by	

vasectomy,	salpingectomy,	or	castration”);	Richard	Sloane,	The	Sloane-Dorland	

Annotated	 Medical-Legal	 Dictionary	 670	 (1987)	 (defining	 “sterilize”	 as	 “to	

render	 incapable	 of	 reproduction”);	 Webster’s	 Third	 New	 International	

Dictionary	Unabridged	2238	(1986)	(defining	“sterilization”	as	“a	procedure	by	

which	a	human	.	.	.	is	made	incapable	of	reproduction”).		Contrary	to	Doherty’s	

assertion	that	the	Black’s	definition	is	unreliable	because	it	dates	to	1905,	that	

the	definition	is	of	such	long	standing	suggests	that	the	Legislature	would	have	

been	clear	had	it	intended	to	expand	the	commonly-understood	meaning—the	
16	

same	 meaning	 that	 it	 used	 in	 34-B	 M.R.S.	 §	 7003(9)	 in	 1984—to	 encompass	

Doherty’s	situation.	

	        [¶24]	 	 For	 these	 reasons,	 we	 conclude	 that	 the	 “failed	 sterilization	

procedure”	 exception	 is	 not	 applicable	 on	 the	 facts	 presented	 to	 us.		

Accordingly,	 our	 answer	 to	 the	 third	 certified	 question	 is	 that	 pursuant	 to	

section	 2931,	 Doherty	 may	 not	 recover	 any	 damages	 on	 her	 claims	 against	

Merck	or	the	United	States.5	

         The	entry	is:	

                          We	 answer	 the	 certified	 questions	 as	 follows:	
                          “We	 answer	 the	 first	 certified	 question	 in	 the	
                          affirmative.	 	 Accordingly,	 we	 decline	 to	 answer	
                          the	second	certified	question.		In	answer	to	the	
                          third	 certified	 question,	 pursuant	 to	 24	 M.R.S.	
                          §	 2931	 the	 plaintiff	 may	 not	 recover	 any	
                          damages	 on	 her	 claims	 against	 either	
                          defendant.”	
                          	
                                        	     	     	       	     	
                                                    	
	                                	




    5	 	 Doherty	 asserts	 that	 this	 result	 violates	 several	 provisions	 of	 the	 United	 States	 and	 Maine	

Constitutions.	 The	 United	 States	 District	 Court	 did	 not	 certify	 a	 question	 of	 the	 statute’s	
constitutionality	to	us,	and	we	decline	to	address	that	issue	before	the	federal	court	has	done	so	in	
this	federal	case.		See	M.R.	App.	P.	25(b)	(“The	certificate	.	.	.	shall	contain	.	.	.	the	question	or	questions	
of	law	to	be	answered.”).	
                                                                                      17	

SAUFLEY,	C.J.,	with	whom	ALEXANDER	and	GORMAN,	JJ.,	join,	concurring.	
	
    [¶25]		Although	we	concur	with	the	Court’s	answers,	we	write	separately	

to	 make	 clear	 the	 very	 limited	 scope	 of	 the	 questions	 presented	 and	 our	

responses	to	those	questions.		

      [¶26]	 	 The	 federal	 court	 has	 not	 asked	 us	 to	 determine	 whether	 the	

wrongful	 life	 statute	 goes	 beyond	 declaring	 that	 the	 birth	 and	 the	 life	 of	 a	

healthy	 child	 do	 not	 constitute	 damages,	 that	 is,	 legally	 recognizable	 injury.		

24	M.R.S.	§	2931(1)	(2016).		Nor	has	it	asked	us	to	determine	whether,	if	the	

statute	 does	 go	 beyond	 the	 gender-neutral	 declaration	 that	 a	 child	 is	 not	 an	

“injury,”	doing	so	constitutes	an	unconstitutional	violation	of	a	woman’s	right	

to	equal	protection	under	the	law.		Id.	

      [¶27]		Moreover,	in	light	of	the	questions	presented,	we	are	not	required	

to	consider	whether	a	person	may	bring	claims	of	ordinary	medical	malpractice	

for	any	negligent	medical	care	provided	to	a	person	who	sought	medical	care	

to	avoid	pregnancy	as	a	result	of	a	medical	condition.		For	example,	a	person	

who	 suffers	 from	 certain	 illnesses	 may	 be	 seriously	 or	 fatally	 harmed	 by	 a	

pregnancy.	 	 In	 answering	 the	 questions	 presented,	 we	 are	 not	 required	 to	

consider	whether	a	claim	of	medical	malpractice	for	contraception	failure	may	

proceed	 in	 those	 circumstances.	 	 Put	 another	 way,	 those	 injuries	 would	 be	
18	

factually	distinct	from	the	nature	of	the	claim	before	the	federal	court	related	

to	the	birth	of	an	unanticipated	but	healthy	child.		In	the	end,	we	are	not	asked	

to	determine	whether	that	type	of	harm	to	a	person,	unrelated	to	the	child,	falls	

outside	of	the	statute’s	limitation	on	negligence	actions.	

      [¶28]	 	 Finally,	 although	 we	 cannot	 disagree	 with	 the	 Court’s	 careful	

parsing	of	the	concepts	of	“sterilization,”	particularly	as	used	in	other	statutory	

contexts,	 it	 is	 clear	 from	 the	 lengths	 the	 Court	 goes	 to	 in	 attempting	 to	

distinguish	various	methods	of	permanent	or	semi-permanent	 contraception	

that	 medicine	 has	 outstripped	 the	 statutory	 definitions	 and	 that	 further	

attention	to	the	language	of	24	M.R.S.	§	2931	(2016)	is	needed.	

      [¶29]	 	 In	 sum,	 we	 write	 to	 clarify	 that	 we	 do	 not	 opine	 on	 the	

constitutionality	of	the	statute,	and	we	do	not	opine	on	whether	a	person	may	

maintain	 a	 claim	 for	 other	 types	 of	 injuries—unrelated	 to	 the	 existence	 of	 a	

healthy	child—arising	from	allegations	of	medical	malpractice	in	the	context	of	

a	pregnancy.	

	     	     	      	     	      	
	
Laura	 H.	 White,	 Esq.	 (orally),	 Bergen	 &	 Parkinson,	 LLC,	 Kennebunk,	 for	
appellant	Kayla	Doherty	
	
Paul	McDonald,	Esq.,	(orally),	and	Daniel	J.	Mitchell,	Bernstein	Shur,	Portland,	
and	Thomas	J.	Yoo,	Esq.,	Reed	Smith	LLP,	Los	Angeles,	California,	for	appellee	
Merck	&	Co.,	Inc.	
                                                                                         19	

Thomas	 E.	 Delahanty	 II,	 United	 States	 Attorney,	 and	 Andrew	 K.	 Lizotte,	 Asst.	
U.S.	 Atty.	 (orally),	 Office	 of	 the	 United	 States	 Attorney,	 Portland,	 for	 appellee	
United	States	of	America	
	
Janet	T.	Mills,	Attorney	General,	and	Susan	P.	Herman,	Asst.	Atty.	Gen.	(orally),	
Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine	
	
	
United	States	District	Court	for	the	District	of	Maine	docket	number	1:15-cv-129-DBH	
FOR	CLERK	REFERENCE	ONLY	
