French Court Extends "Wrongful Birth" Ruling to Down Syndrome

By Liz Townsend

Broadening an earlier decision that awarded damages for the birth of a disabled child, France's highest court ruled November 28 that a doctor should be held responsible for neglecting to diagnose an unborn baby's Down syndrome. The Cour de Cassation held that the mother should have had the opportunity to abort him if she had known he had the condition.

Many in France immediately condemned the decision and the judges' declaration that the child, known as Lionel, was "unlucky to be born," according to The Observer. Children with disabilities gathered with their families on the steps of the Cour de Cassation soon after the ruling was announced, The Observer reported, demonstrating against the court's decision with the slogan, "We are wanted and we are loved."

"I think with great sadness of all families who have welcomed Down syndrome children, who have showered them with love and received great love in return," Andre Vingt-Trois, Catholic bishop of Tours, told the Christian Science Monitor. "This ruling amounts to a declaration that such love was worthless."

The decision is the second recent ruling by the court allowing so-called "wrongful birth" lawsuits. In July 2001, the court ordered a laboratory and a doctor to pay Nicolas Perruche because he was born with birth defects caused by his mother's undiagnosed case of German measles. His mother testified that she would have had an abortion if she knew she had the disease.

Lionel was born in 1995 with Down syndrome, according to the Monitor. His mother sued her doctor after her son's birth, arguing that "she would have aborted if she had been given a correct prenatal diagnosis," the Monitor reported.
The judges ruled that the doctor was "100 percent" liable for the costs of Lionel's care, since the boy would not have been born if the mother knew her child had Down syndrome. The court will announce the amount of damages, which could exceed $100,000, in late January.

The court's decisions have created an uproar in France. "Certain judges still believe that it is better to be dead than to be handicapped," Xavier Mirabel of the Collective against Handiphobia told the Monitor. The disability rights group has filed its own lawsuit trying to overturn the Perruche ruling.

A French physicians' group warned that even more lawsuits holding doctors responsible for the births of children with disabilities could be filed. "The growing number of lawsuits will have a serious effect on the actions of foetal specialists, who are already badly discouraged," the National Order of Doctors said in a statement, according to Agence France-Presse. "They will cease to recommend tests on pregnant women that are not obligatory. Most often, they will suggest at the smallest doubt the termination of the pregnancy."

French government officials tried to steer a course between both sides of the issue. Health Minister Bernard Kouchner told the Monitor that he is "perplexed" by the case, and stressed the "value of every life." However, he added, "Nobody should question a doctor's medical responsibilities towards a mother, any harm done to her as a result of medical negligence, or challenge her right to have an abortion."

Disability rights groups insisted that prejudice against people with Down syndrome and other conditions is common in France, and the government has not done its part to care for these vulnerable people. The Collective against Handiphobia's Mirabel told the Monitor that 85% of disabled children in northern France are sent to Belgium for school because the French system is unable to help them.

And children with Down syndrome, a nonlethal genetic condition, suffer the same prejudice. Willemijn Forest told the Monitor that when her baby boy, already diagnosed with the syndrome, was born, doctors at first kept the baby from his mother.

"After the delivery, they took him away immediately, assuming I did not want to see him anymore," Forest said. "I said of course I want to keep him. I was so appalled by their attitude."