French Court Awards Damages for "Wrongful Birth"

By Liz Townsend

Controversy continues to swirl over the decision of France's highest court that a child born with severe handicaps can sue for the "damages" he suffered by being born rather than aborted.

One critic of the decision said, "This is the first time that doctors have been condemned for not having killed."

The Cour de Cassation ordered a laboratory and a doctor to pay Nicholas Perruche because he was born with birth defects caused by his mother's undiagnosed case of German measles. Josette Perruche testified that she would have aborted her son had she known she had the disease, the New York Times reported.

The ruling has caused enormous controversy in France, where it has been criticized for suggesting that an unborn child has a "right" to be aborted and that his/her birth is a "mistake" for which doctors should be held accountable.

"In the two months since the ruling was upheld, politicians, philosophers and lawyers have variously argued that it is absurd, dangerous and unethical and that it will for the first time put a price on a human life," the Times reported.

In 1982, when Mrs. Perruche was one month pregnant with Nicholas, her four-year-old daughter was diagnosed with rubella (known as German measles), the Times reported.

Two blood tests to determine if Mrs. Perruche had the disease were contradictory, and she was advised to continue carrying her baby. Mrs. Perruche had told her doctor she wanted an abortion if she had German measles, according to the Times, since the disease often causes birth defects.

When Nicolas was born the following January, he quickly showed signs he had been affected by the disease while in utero, the Times reported. He is deaf and mute, and mostly blind.

Now 18 years old, he lives in a government institution and sees his family on weekends, according to the newspaper.

Nicolas's parents sued the laboratory and the doctor in 1988, and received $13,000 for their own suffering, the Times reported. They soon filed another suit on Nicolas's behalf, asserting that he should be awarded damages because medical errors allowed him to be born.

The Cour de Cassation ruled in November 2000 and affirmed in July 2001 that Nicolas's birth resulted from the mistakes of the doctor and laboratory. Since these errors "had prevented Mrs. Perruche from exercising her choice to end the pregnancy in order to avoid the birth of a handicapped child," the court ruled, "the latter can ask for compensation for damages resulting from this handicap."

The court limited its ruling by declaring that there must be a "direct causal link" between the actions of the doctor during the pregnancy and the birth of the disabled child, according to the Independent.

The judges rejected lawsuits from three other handicapped children, ruling that they could not establish that link.

"This sends a message to handicapped people that their life is worth less than their death," Christine Boutin, head of the French pro-life group Alliance for the Right to Life, told the Times. Other critics, many of whom are pro-abortion or at best neutral, argued that the ruling would encourage abortions of disabled children, since doctors would be worried that they would be sued after the baby is born.

"Through trying too hard to save a life, they will be liable to be convicted for allowing the life of a child who will claim that it preferred not to be born," Jean-Francois Mattei, leader of the opposition Liberal Democracy Party, told the London Times.

Prior to the decision's announcement, a geneticist who works closely with couples with congenital illnesses told the BBC that a victory for the couple could have serious consequences.

"This will push my colleagues to decide more often to terminate pregnancies when they are unsure about the health status of the child," said Segoiene Ayme. "And this is a very common situation."

Ironically, abortion proponents understand that for them the case potentially opens a Pandora's Box. Dr. Jacques Milliez, head of gynecology at Saint-Antoine Hospital in Paris and longtime supporter of abortion, told the Times that the case may strengthen the pro-life argument because it "reinforce[s] the legal status of the unborn."