dissenting.
The majority has decided that the medical malpractice claims asserted against the United States by plaintiff Timothy Brown on behalf of himself and his minor child, Melody Brown, were improperly dismissed by the district court for lack of subject matter jurisdiction. Because I would conclude that plaintiffs action is barred under Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) and Sixth Circuit precedent, I respectfully dissent.
In Feres, the Supreme Court held that the government is not liable under the Federal Torts Claims Act for injuries to military personnel for injuries that “arise out of or are in the course of activity incident to service.” Feres, 340 U.S. at 146, 71 S.Ct. 153. The Feres doctrine is not limited to those situations where a service member is injured or killed in the course of military duty or while subject to a direct command relationship. Woodside v. United States, 606 F.2d 134, 140 (6th Cir.1979). The Supreme Court in Feres disallowed two claims of medical malpractice asserted against military doctors, and courts have consistently applied the Feres doctrine in barring suits for the alleged negligent medical treatment of active service members at a military hospital. See Skees v. United States By and Through Dept. of Army, 107 F.3d 421, 424 (6th Cir.1997); Sidley v. United States Dept. of Navy, 861 F.2d 988 (6th Cir.1988)(treatment of service member at naval hospital incident to military service); Woodside, 606 F.2d at 142 (injury to active duty service member while receiving treatment at military hospital or medical facility deemed to be incident to military service).
The Feres holding has also been extended to bar non-military third-party claims based on injuries sustained by service persons. See Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977)(claim asserted by third party seeking indemnity for damages paid to injured service member barred).
Courts have construed Feres as barring the derivative claims of family members of service persons where the claim has its “genesis” in an injury to an active duty service person incident to military service. Under the “genesis” test, if the non-serviceman’s suit is based on essentially the same facts as the potential serviceman’s suit or the non-serviceman’s suit could not have happened “but for” the serviceman’s cause of action, then the Feres doctrine precludes suit. Minns v. United States, 155 F.3d 445, 449 (4th Cir.1998).
Cases applying the “genesis” test include: Minns, 155 F.3d at 449-51 (claims of children of servicemen given investiga-tional and defective drugs, causing children to be born with birth defects, properly dismissed because the exposure of *617servicemen to chemicals was the genesis of children’s alleged contact with chemicals); Skees, 107 F.3d at 424-25 (claim of widow of serviceman who committed suicide due to allegedly negligent treatment at military hospital barred); West v. United States, 744 F.2d 1317 (7th Cir.1984)(vacating opinion reported at 729 F.2d 1120 which held that there was a cause of action for health problems suffered by children due to parents’ incompatible blood types where parents allegedly relied on negligent typing of father’s blood at time of induction); Hinkie v. United States, 715 F.2d 96 (3d Cir.1983)(barring claims of children born with birth defects caused by father’s exposure to radiation); Mondelli v. United States, 711 F.2d 567 (3d Cir.1983)(claim for child’s cancer caused by father’s exposure to radiation while on active duty barred); Lombard v. United States, 690 F.2d 215, 223-26 (D.C.Cir.1982)(damage claim for genetic injuries to children allegedly caused by father’s exposure to radiation while in the service barred); Scales v. United States, 685 F.2d 970 (5th Cir.1982)(claim asserted on behalf of child for birth defects allegedly caused by rubella vaccination given to child’s mother barred); Laswell v. Brown, 683 F.2d 261 (8th Cir.1982)(claims of children for genetic injuries caused by father’s exposure to radiation barred); Monaco v. United States, 661 F.2d 129 (9th Cir.1981)(claim of child for injuries caused by father’s exposure to radiation barred).
In Scales, the Fifth Circuit addressed the viability of claims asserted on behalf of a child allegedly born with birth defects due to a rubella vaccination given to his service member mother during her pregnancy. The court distinguished cases which have permitted the dependents of servicemen to sue the government based on negligent conduct directed to the dependent alone which did not involve any decisions by the military toward enlisted personnel. Scales, 685 F.2d at 974. In contrast, the court noted, the allegations of negligence of the child in Scales focused entirely on the medical treatment that military physicians gave the mother. Id. The court stated:
The treatment accorded his mother is inherently inseparable from the treatment accorded Charles as a fetus in his mother’s body. Consequently, the district court’s analysis is the same whether the suit is brought by Charles or Ms. Scales. In either instance, the judge is placed in the position of questioning the propriety of decisions or conduct of fellow members of the Armed Forces. This is precisely the type of examination that Feres seeks to avoid.
Id.
A minority of courts have adopted a position contrary to Scales. For example, in Del Rio v. United States, 833 F.2d 282 (11th Cir.1987), the court held that a claim asserted on behalf of twin infants who were allegedly injured due to negligent prenatal care given to their service person mother was not precluded under Feres. In Romero by Romero v. United States, 954 F.2d 223, 225 (4th Cir.1992), the court reversed the dismissal of claims brought on behalf of a child born prematurely with cerebral palsy due to the doctors’ failure to implement a medical treatment plan made necessary by his service person mother’s incompetent cervix, concluding that the genesis test only applied to civilian injuries derived from an actual injury to the service person.
In Irvin v. United States, 845 F.2d 126 (6th Cir.1988), the Sixth Circuit considered the case of a service member who became pregnant while on active duty in the United States Army. The complaint alleged that the child died due to negligent preña-*618tal medical care, including prescribing contraindicated medication during pregnancy. The Irvin court addressed whether the claim brought on behalf of the deceased infant by her parents was barred, and concluded that it was. The court “decline[d] appellants’ invitation to reject the genesis test.” Id. at 130. The Irvin court also relied on the above-quoted language from Scales, stating, “This is the position which we adopt today.” Id. at 131. The court also noted the different approach taken by the court in Del Rio and declined to follow that reasoning. Id.
The decision in Irvin was subsequently followed in an unreported decision in France v. United States, 225 F.3d 658 (table), 2000 WL 1033020 (6th Cir.2000). In France, a wrongful birth claim was asserted on behalf of an infant born with birth defects whose service member mother alleged that the failure to perform adequate ultrasound examinations deprived her of the opportunity to terminate her pregnancy. The France panel concluded that plaintiffs case was indistinguishable from Irvin, and affirmed the dismissal of plaintiffs claims. Id. at 3.
The claims in the instant case also fall within the scope of Irvin. Any prenatal treatment involving Melody Brown also involved her mother; in fact, at the time the treatment decision was made, Melody had not been conceived. Irvin involved negligence in prenatal care during pregnancy. This case involved the failure to prescribe prenatal vitamins both before and during the early stages of pregnancy. However, this distinction is not critical to the Feres analysis. If anything, the fact that the allegedly negligent treatment decision instructing Deborah Brown to stop taking prenatal vitamins was made prior to Melody Brown’s conception makes the application of the Feres doctrine even more compelling, because the decision at that point impacted only the physical condition of Deborah Brown, a service member. Once Melody was conceived, the treatment decision involved both Melody and her mother.
The majority states that Irvin is distinguishable because the alleged negligent treatment in this case caused no injury to the mother, and therefore, the “genesis” theory is inapplicable in this case. However, plaintiffs claim on behalf of Melody Brown depends on a showing that the decision to stop prescribing prenatal vitamins allegedly resulted in Deborah Brown being physiologically less capable of delivering a healthy child. Any woman wanting a healthy child would argue that a negligent medical decision impairing her ability to do so, resulting in the birth of a child with health problems, would constitute an actionable injury. If plaintiffs theory of liability is correct, the medical decision to cease prescribing prenatal vitamins had a significant impact on Deborah Brown’s body chemistry by depriving her body of the nutrients needed to create a healthy baby, allegedly resulting in injury to Melody. This situation is analogous to the cases cited above involving servicemen who suffered chromosomal damage due to exposure to radiation, thereby impairing their ability to father healthy children. If the medical decision to stop prenatal vitamins was negligent, then Deborah Brown suffered an injury which was also the “genesis” of the injury to her child, and the alleged injury to Melody Brown was derivative of the alleged injury caused to Deborah Brown.
Even if it is assumed that no injury occurred to Deborah Brown, neither that fact nor the fact that no claim of injury has been asserted by Deborah Brown alters the Feres analysis. The plaintiffs in Minns also argued that their claims were not barred because they only alleged an injury themselves, not to the parent ser*619vice member. The court found that the omission of this allegation was not critical to the Feres analysis, stating:
We conclude that the plaintiffs cannot escape the fact that the negligent acts alleged in their complaint find their basis in the military’s decision to inoculate its soldiers with drugs and to expose them to pesticides, and the issue of whether they can allege or demonstrate injury is irrelevant to the analysis. See e.g., Monaco, 661 F.2d at 134 (holding that the fact that a plaintiff may seek relief from injury not based on the injury of the serviceman “does not change the substantive analysis [because] the court must still examine the Government’s activity in relation to military personnel on active duty”)____Because the servicemen’s exposure to the chemicals is the genesis of the plaintiffs’ alleged contact with the chemicals, Feres bars the claims.
Minns, 155 F.3d at 450. Similarly, there was no indication in West that the serviceman father was injured in any way due to the negligent recording of his blood type, yet the Ninth Circuit vacated its prior opinion recognizing the right of the serviceman’s children to assert claims based on the erroneous blood typing. West, 744 F.2d at 1317.
The majority seeks to discredit Irvin by noting the post-ScaZes opinion of the Fifth Circuit in Dickerson ex rel. Dickerson v. United States, 280 F.3d 470 (5th Cir.2002). However, the Feres doctrine was not at issue in Dickerson, because the government in that case did not contest liability. Id. at 474. Neither Feres nor Scales was cited in the opinion. In addition, Dickerson involved claims alleging negligence in the actual delivery of the infant plaintiff, including the failure to perform a caesarean section which resulted in brain damage, not negligence in prenatal treatment, and thus it is distinguishable from Scales on its facts.
The majority also reasons that the three rationales underlying the Feres doctrine do not apply in this case, those being: (1) the distinctly federal character of the relationship between the government and members of the armed forces; (2) the existence of generous statutory disability and death benefits provided to service members; and (3) the fact that claims for injuries incurred incident to military service would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness. United States v. Johnson, 481 U.S. 681, 688-691, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987). However, the defining standard under Feres has always been whether the injury arose out of or occurred in the course of activity incident to service. See id. at 686, 107 S.Ct. 2063 (“In Feres, this Court held that service members cannot bring tort suits against the Government for injuries that ‘arise out of or are in the course of activity incident to service.’ [Feres,] 340 U.S., at 146, 71 S.Ct. 153. This Court has never deviated from this characterization of the Feres bar.”)(footnote omitted). Although Johnson included a general discussion of the three rationales, the Court referred solely to the fact that the alleged injury arose directly out of and was incident to military service in analyzing claim at issue in that case. Id. at 688-91, 107 S.Ct. 2063.
In United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987), the Supreme Court did not mention the first two factors, and specifically rejected a “special factors” analysis which would consider how military discipline would actually be affected in a particular case, stating that it would be appropriate to disallow actions “whenever the injury arises out of activity ‘incident to service.’ ” Id. at 681, 107 S.Ct. 3054. This led the Tenth Circuit *620to conclude that “Stanley thus effectively merged the ‘special factors’ analysis with the incident to service test.” Ricks v. Nickels, 295 F.3d 1124, 1130 (10th Cir.2002).
In Minns, the plaintiffs argued that two of the underlying rationales for the Feres doctrine did not apply to them, because the children of servicemen did not have a distinctively federal relationship to government or an effective remedy for their claims. The Fourth Circuit nonetheless concluded that because the children’s claims were derivative of the military’s alleged negligent acts directed at its servicemen, their claims were barred by the genesis test because “their suits would require the judiciary to enmesh itself deeply into military decisions, a consequence that implicates the primary justification for the Feres doctrine.” Minns, 155 F.3d at 450-51. Similarly, in Scales, the Fifth Circuit addressed the question of whether a suit filed on behalf of the service person’s child would have the same disruptive effect on military discipline as a suit brought by his service person mother. .The court concluded, “If the court must second-guess the judgment of military officers in assessing their treatment of a member of the armed services, the claim will be deemed to have a disruptive effect on discipline and will be dismissed.” Scales, 685 F.2d at 973.
The record in this case is silent as to why the military physician instructed Deborah Brown to stop taking prenatal vitamins. Any inquiry as to why this decision was made would necessarily involve the district court in questioning the decision of a military doctor in the treatment of an active service member, implicating the third Feres factor. This is sufficient to invoke the Feres bar.
Regardless of whether this panel agrees or disagrees with the reasoning in Irvin, the genesis test adopted in Irvin remains the law in this circuit. This court has long adhered to the “venerable principle” that a prior published decision remains controlling unless overturned by an inconsistent decision of the United States Supreme Court or by this court itself sitting en banc. Schoenberger v. Russell, 290 F.3d 831, 841 (6th Cir.2002); United States v. Smith, 73 F.3d 1414, 1418 (6th Cir.1996); 6 Cir. R. 206(c). The facts of the instant case fall within the scope of the-holding in Irvin, and that holding mandates the dismissal of plaintiffs claims. I would affirm the judgment of the district court dismissing the complaint for lack of subject matter jurisdiction. '