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"WRONGFUL BIRTH" LAWSUITS

"It is an attack on human dignity to regard the simple fact of living as detrimental. . . This is making a distinction between lives that merit living and those which don't . . . that's a slippery slope."
--Didier le Prado, an attorney for a French doctor who was sued by a couple because he did not tell them that their son might be born with a disability.

2006
May 10: High Court Rejects "Wrongful Life" Claims (Australia)
2005
April 12: Family Blames Special Education Service For Daughter's Pregnancy
April 6: Dutch Court Backs Parents In 'Wrongful Life' Case (Netherlands)
2004
September 14: Parents Sue Doctor For Not Testing Baby For Spina Bifida (California)
April 29: Australian Court Rejects "Wrongful Life" Case (Australia)
2003
January 2: High Court Throws Out "Wrongful Life" Suit (Utah)
January 31: Judge Orders Doctor To Pay Parents Over Daughter's Birth (British Columbia, Canada)
2002
January 15: Proposal Would Keep People From Filing "Wrongful Birth" Lawsuits (France)
2001
July 16: New High Court Ruling Upholds "Wrongful Birth" Decision (France)
October 22: NY Times Looks At French "Wrongful Birth" Cases (France)
November 28: High Court Wants Boy Compensated For Being Born With Down Syndrome (France)
2000
January 6: Parents Sue Over Baby's Disability (France)
November, 6: Couple Sues Doctor For Son's Birth (France)
November 21: Family Wins "Wrongful Birth" Decision (France)

Parents Sue Over Baby's Disability
January 6, 2000

MIAMI, FLORIDA--In 1996, Alfredo and Leslie Zambrana became the parents of Ashly, who has Down Syndrome. They are now suing a clinic, a hospital and the university affiliated with the hospital, for not performing certain tests that may have determined that Ashly had Down Syndrome. The parents are seeking damages to help defray the costs of her care.

In this Miami Herald story, they explain that if they had known about her disability, they would have had Ashly aborted:
http://www.herald.com/content/mon/news/dade/digdocs/022513.htm (Link expired)

Couple Sues Doctor For Son's Birth
By Dave Reynolds, Inclusion Daily Express
November 6, 2000

PARIS, FRANCE--In what is being considered an historic move, a couple is suing a doctor because he did not let them know that their son might be born with disabilities 17 years ago.

The courts had already ordered medical authorities to pay Josette and Christian Perruche a cash award because they failed to realize that Josette had caught rubella, a virus similar to the measles, during her 1983 pregnancy. As a result of Josette's rubella infection, their son Nicolas was born blind, deaf and has developmental disabilities.

During a hearing on Friday, the couple demanded new compensation, not because of their son's disabilities, but because, they say, their son was born. Mr. and Mrs. Perruche claimed that they would have chosen to have an abortion if they had been told about the infection and its effect on Nicolas.

The BBC quoted a doctor's attorney and the public prosecutor as warning the court that a ruling for the parents would send the wrong message.

"It is an attack on human dignity to regard the simple fact of living as detrimental," said lawyer Didier le Prado, speaking on behalf of the doctor. "This is making a distinction between lives that merit living and those which don't... that's a slippery slope."

The parents' attorney argued that the case should be considered on its own merits, that it would not have wider implications.

The court is expected to deliver a verdict on November 17.

Family Wins "Wrongful Birth" Decision
By Dave Reynolds, Inclusion Daily Express
November 21, 2000

PARIS, FRANCE--The Cour de Cassation, France's highest court of appeal, ruled on Friday that a child born with disabilities could sue doctors for damages for being born rather than aborted.

The courts had already ordered medical authorities to pay Josette and Christian Perruche a cash award because they failed to realize that Josette had caught rubella, a virus similar to the measles, during her 1983 pregnancy. As a result of Josette's rubella infection, their son Nicolas, now 17, was born blind, deaf and has mental retardation.

The parents have said that they would have aborted Nicolas had they known he would have disabilities.

The public prosecutor opposed the decision, arguing that paying damages would amount to deciding that some lives are "not worth living". The prosecution added that the ruling could set a precedent for children to take their parents to court for allowing them to be born.

One expert said the decision could have serious consequences for genetics counselors, doctors, people with disabilities and their parents. "This will push my colleagues to decide more often to terminate pregnancies when they are unsure about the health status of the child," said geneticist Segolene Ayme.

"And this is a very common situation," she told the BBC:
http://news.bbc.co.uk/hi/english/world/europe/newsid_1028000/1028648.stm

New High Court Ruling Upholds "Wrongful Birth" Decision
By Dave Reynolds, Inclusion Daily Express
July 16, 2001

PARIS, FRANCE--Last week, the Cour de Cassation, France's highest court, ruled that three children with disabilities have the right to sue their mothers' physicians because the mothers were not given the chance to abort their pregnancies.

The ruling upholds a similar decision from last November in which Nicolas Perruche was allowed to sue his mother's physicians because they had failed to detect that she had caught rubella, a virus similar to the measles, during her 1983 pregnancy. As a result of her infection, Nicolas was born blind, deaf and has mental retardation.

Nicolas' parents said that they would have aborted Nicolas as a fetus had they known he would have disabilities.

Doctors and advocates for people with disabilities responded angrily to the decision, citing it as another move toward devaluing people with disabilities.

"The ruling means that the handicapped have no place in our society," Yves Richard, a lawyer representing the medical profession, is quoted as saying in this story from the BBC:
http://news.bbc.co.uk/hi/english/world/europe/newsid_1437000/1437335.stm

"The truth is, this is not about the rights of the handicapped," wrote Rod Dreher, in a column for Sunday's New York Post.

"This is about society wishing to establish a right - by any means necessary - not to be burdened with caring for them."

Dreher compares the decision by France's high court to the eugenics movement during the first half of the last century:
"FRENCH ABORT LAW DOES NAZIS PROUD"
http://www.nypost.com/07152001/commentary/34892.htm (Expired)

NY Times Looks At French "Wrongful Birth" Cases
October 22, 2001

PARIS, FRANCE--Nearly a year ago, France's highest court ruled that Nicolas Perruche could sue his mother's physicians because they had failed to detect that she had caught rubella, a virus similar to the measles, during her 1983 pregnancy. As a result of her infection, Nicolas was born blind, deaf and has mental retardation.

Nicolas' parents said that they would have aborted him as a fetus had they known he would have disabilities.

In July of this year, the high court upheld that decision when they ruled that three children with disabilities had the right to sue their mothers' physicians because the mothers were not given the chance to abort their pregnancies.

Similar so-called "wrongful birth" suits have gone to courts around the world in recent years. But the decision in France has generated a great deal of attention in the media, along with reactions from the medical community, churches, and the disability community.

Doctors worry that they will be forced to encourage expectant mothers to choose abortions rather than risk law suits. Church groups are concerned about the moral implications and the disregard for the sanctity of life.

Disability advocates point to the decisions as further examples that the lives of people with disabilities are not valued in our society.

The New York Times article wrote a nice piece on the debate which appeared in the Orange County Register on Sunday:
http://www.ocregister.com/nation_world/nybirthcci3.shtml (Expired)

High Court Wants Boy Compensated For Being Born With Down Syndrome
By Dave Reynolds, Inclusion Daily Express
November 28, 2001

PARIS, FRANCE--The Cour de Cassation, France's high court of appeals, has ruled that the parents of a boy who has Down syndrome should be compensated because he was born.

The boy, identified in media reports only as Lionel, was born in 1995. His parents then sued the mother's gynecologist because the doctor had not detected during the pregnancy that the boy would be born with Down syndrome.

A court agreed with the parents and ordered the doctor to pay around $100,000 for medical negligence.

Now, the country's highest court has decided that the $100,000 is not enough. The court wants the amount increased substantially because the parents claim they would have had an abortion if they known he would be born with a disability.

The decision reinforces another high court ruling made one year ago. The court ruled last November that Nicola Peruche, who was born with several disabilities, could sue his doctors because they had failed to diagnose that his mother had rubella during the pregnancy. His parents also claimed that they would have had him aborted if they had known he might have disabilities.

Disability rights advocates who are trying to fight the Peruche ruling in the courts were further angered by this new ruling.

"Certain judges in the high court of appeal still think it is better to be dead than handicapped," said activist Xavier Mirabel.

Proposal Would Keep People From Filing "Wrongful Birth" Lawsuits
By Dave Reynolds, Inclusion Daily Express
January 15, 2002

PARIS, FRANCE--The French National Assembly passed a bill Thursday that lawmakers say would stop people with disabilities from filing so-called "wrongful birth" lawsuits against doctors for allowing them to be born. The proposal now goes to the Senate, where it is expected to become law before the end of February.

The new law states that "nobody can claim to have been harmed simply by being born". It would still allow parents to sue doctors if they made a "blatant error" and failed to diagnose a serious illness in a fetus or a pregnant woman.

"This is a very important decision," Xavier Mirabel, head of France's National Union of Associations of Parents and Friends of the Mentally Handicapped, told reporters on Friday. "French society can no longer consider a disabled person to be a mistake."

The measure is in response to criticism the government has faced following three recent rulings by France's highest court to allow people with disabilities to sue doctors for failing to diagnose a disability -- or inform their mothers that they might have a disability -- before they were born.

In November 2000, the court ruled that Nicolas Perruche could sue his mother's physicians because they had not detected that she had caught rubella, a virus similar to the measles, during her 1983 pregnancy. Because of her infection, Nicolas was born blind, deaf and has mental retardation.

Nicolas' parents said that they would have had him aborted if they had known he would have disabilities.

The court made similar rulings this past July and again in November.

Those decisions outraged disability rights groups who said that the court believed that "it is better to be dead than handicapped".

Doctors who specialize in treating pregnant women were also angered by those rulings. They claimed that they would now be forced to pressure mothers into having abortions when there is any risk of a child being born with a disability. They also point out that their insurance premiums have multiplied by 10 times since the Perruche ruling just 14 months ago.

It was the doctors -- not disability rights advocates -- that forced parliament to push through the new legislation. Earlier this year, physicians began to strike in protest. They refused to do ultrasounds or any other tests designed to detect disabilities or illnesses in a fetus.

The fact that the doctors' strike led to the emergency legislation has reinforced the belief among some advocates that the government primarily cares about keeping children with disabilities from being born.

"We deplore the rationale on which the parliament has acted, which was not to eliminate discriminatory action but to facilitate the abortion of disabled children," Paul Tully, executive director of the London-based Society for the Protection of Unborn Children, told Cybercast News Service.

"We support the substance of the move, but we would like to see an end to the screening and abortion of disabled babies," Tully said.

High Court Throws Out "Wrongful Life" Suit
By Dave Reynolds, Inclusion Daily Express
January 2, 2003

SALT LAKE CITY, UTAH--The parents of a 4-year-old girl with Down syndrome cannot sue a doctor for misreading prenatal tests designed to identify the disability, the Utah Supreme Court ruled Tuesday.

In a split decision, the court ruled that the state's 1983 Wrongful Life Act is constitutional. That law keeps parents from filing so-called "wrongful birth" or "wrongful life" lawsuits against doctors for failing to provide such information.

Marie Wood and Terry Borman claimed that they went to doctors specifically to find out whether their unborn daughter would have a genetic disability. The couple was assured that there was little risk.

After the girl was born with Down syndrome, Wood and Borman sued the hospital, saying they would have ended the pregnancy if they had known.

A lower court threw out the lawsuit based on the Wrongful Life Act. The Supreme Court upheld that decision.

Related article:
"'Wrongful Life' Statute Upheld" (Salt Lake Tribune)
http://www.sltrib.com/2003/Jan/01012003/utah/16415.asp

Judge Orders Doctor To Pay Parents Over Daughter's Birth
By Dave Reynolds, Inclusion Daily Express
January 31, 2003

VANCOUVER, BRITISH COLUMBIA--A Supreme Court justice ruled this week that a physician must pay a divorced couple $325,000 ($214,00 US) for the "distress and expense" of giving birth to a child with Down syndrome.

Justice Michael Catliff determined that Dr. Ken Kan was negligent when he did not order an amniocentesis test for Lui-Ling "Lydia" Zhang, of Vancouver, which likely would have found that her unborn daughter, Sherry, had Down syndrome. Zhang has said that she would have aborted her pregnancy had she known that before the baby was born in April 1997.

Dr. Kan was ordered to pay $10,000 in damages to Zhang and $315,000 in damages and living costs to Simon Fung, the father with whom 5-year-old Sherry now lives in Los Angeles, California. Justice Catliff explained that the award would have been higher, but he cut the amount in half because the parents contributed to the situation themselves.

The attorney representing Zhang and Fung said his clients will likely appeal the decision and argue for a larger award.

During a 15-day trial in November, Zhang said that Fung could not accept that she had given birth to a child with a mental disability. Having Sherry "totally disrupted our plans," she explained. The couple's one-month-old marriage then began to fall apart, Zhang said.

Zhang has seen Sherry just eight times in the last five years.

Related article:
"Mother wins damage claim over lack of test for Down syndrome" (Associated Press via Seattle Post Intelligencer)
http://seattlepi.nwsource.com/local/106492_down30ww.shtml

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