BY Kripa Sriram
Should Children Born Disabled Be Entitled To Compensation?
A severely disabled French boy won a landmark case against medical authorities for allowing him to be born rather than aborted.
Nicolas Perruche was born deaf, part-blind, and with mental disabilities in 1983 after a doctor and a medical laboratory failed to realize that his mother had caught rubella, also called German measles, during her pregnancy.
It was claimed that the mistakes committed by the doctors and the laboratory prevented Mrs. Perruche, mother of the disabled boy, from exercising her choice to end the pregnancy. The parents of the boy said the failure to diagnose the disease damaged their child in the womb and stopped them from opting for abortion. Medical staff incorrectly believed that she had already been immunised against rubella. The courts decided that the doctors were at fault and ordered them to pay compensation to the Perruche family.
The French Courts decided, that: “Since mistakes committed by the doctors and the laboratory while carrying out their contract with Mrs Perruche prevented her from exercising her choice to end the pregnancy to avoid the birth of a handicapped child, the latter can ask for compensation for damages resulting from this handicap.” The question posed by the parents to the court was, “Would my son really have wanted to live if he’d known he had all these disabilities?” While few would criticize the desire to ensure their son has adequate financial help, many in France are concerned about the moral questions which the case raises. This has raised a moral controversy.
Though it is terrible for the parents to have to face problems because of the carelessness of the doctors, many in France cannot approve the idea of claiming compensation for being alive. Many consider that a victory for the couple could have serious consequences, as many doctors would then decide more often to terminate pregnancies when they are unsure about the health status of the child.
Subsequently, the “Perruche Case” resulted in lawsuits being filed by three mentally and physically disabled children aged between nine and 11. One has a malformation of the spine and the other two have only one arm.
France upholds ‘right not to be born’
France’s highest court of appeal ruled that the three disabled children are entitled to compensation if their mothers were not given the chance of an abortion. Doctors and campaigners for the disabled reacted furiously, describing the decision as an encouragement to parents seeking a genetically perfect child. The ruling upheld a widely condemned landmark decision in the Perruche case, which awarded a mentally retarded boy damages because he had not been aborted.
The courts decided that the Perruche precedent remained “as long as a causal link can be established with an error committed by a doctor”.
The case is widely described as establishing in law a disabled child’s “right not to be born.” In light of the decision, pro life groups in France responded angrily. The decision was condemned as being a real act of phobia because parents could be attacked and seen as irresponsible if they gave birth to a handicapped child. Doctors also became fearful of being sued for a mis-diagnosis and it seemed that they would encourage parents to abort the fetus at the smallest hint of a disability. As such, the consensus was that the real risk of this decision was that it started a process that ends with the search for the perfect child.
The court heard warnings against stumbling onto the “slippery slope” of saying that some lives were not worth living. The lawyers for the doctors argued that it was 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”. Public prosecutors warned the court that the case could set a precedent for the systematic aborting of all foetuses where the babies were “expected “to be born with disabilities.
The Perruche ruling reveals the total incapacity of our society to accept disability as a richness, and its rejection of anything that is different.
It was also said that the recognition of the right “not to live” might lead children dissatisfied with their existence to take their parents to court. The impact of the decision was felt immediately when gynaecologists in France refused to carry out ultrasound scans on pregnant women because they could be liable should a disabled child be born. Subsequently, the doctors continued to carry out scans on women already under their care but they refused to carry out ultrasound scans on any newly pregnant women. Aside from their ethical objections to the ruling, they maintained that the ultrasound scanning for disability is nowhere near 100% reliable, even when carried out correctly. In the case of Down’s syndrome, it relies on spotting telltale differences in the skin thickness on the neck of the developing foetus. There are other tests available to doctors, but only the most invasive of these have a high detection rate – and carry an increased risk of miscarriage. Prenatal specialists saw their insurance premiums soar to up to 10 times their previous rates since the Perruche ruling.
This groundbreaking ruling opened up a pandora’s box of similar litigation and the aforementioned principle was upheld in a further three cases involving babies with birth defects. Campaigners for the rights of the disabled were perturbed by the ethical implications, especially after the ruling was followed by two similar judgments. In one of them, the child in question was not severely brain-damaged but had Down’s Syndrome – suggesting that the precedent was being extended to much less serious afflictions. Thus, the decisions seem to suggest, that certain judges think it is better to be dead than handicapped.
French Parliament overturns ruling
The French parliament, in January 2002, voted to overturn the controversial legal ruling that established the “right not to be born”. The bill, passed with the support of the government, follows three cases in which judges ruled that families whose children were born with birth defects could sue because doctors did not spot the problems during prenatal scans. The bill states that “nobody can claim to have been harmed simply by being born.” The bill passed says no one can claim damages for having been born. By passing the bill the French Government hopes to bring an end to a year-long legal and moral controversy. The bill states that “nobody can claim to have been harmed simply by being born.” Initially the government had held out against legislation, but was forced to act by public pressure and by the decision by some medical staff to stop carrying out prenatal scans.
Under the new law, only the parents will be able to sue a doctor for damages, and then only if the error is “blatant,” in other words, if the doctor actually caused a disability or overlooked something that should have been obvious.
Not everyone was satisfied and many say the original problem that first led to the Perruche ruling had not been addressed. That being the lack of state provision for disabled people, particularly those who reached adulthood, especially since most are unable to find places in homes and end up as a huge financial burden on their parents. It was, after all, in recognition of this that the judges who ruled in the Perruche case made their decision in the first place – in order to relieve the difficulties of the boy’s parents. The critics of the law were of the opinion that there have to be concrete measures to increase assistance, because every life has a value.
Some even say that the Perruche ruling has been misinterpreted and that the government is legislating to supersede it under the pressure of an ill-informed public opinion. “The court never said there should be damages for the mere fact of being alive. It said there should be damages for suffering,” says the lawyer for one of the families that benefitted from the ruling. “And the child suffers not from being born – but from the disability.”
The law has been passed by the National Assembly; the bill now goes before the upper house of parliament, the Senate. The government hopes to have the legislation in the statute books by the end of February, thus bringing an end to a year-long moral and legal controversy.
Questions left unanswered?
The Perruche ruling and the subsequent decisions have brought to light the plight of handicapped children, who solely due to their handicap are unable to lead a normal, healthy life. This in turn poses a heavy financial burden on their caregivers and leads them to believe that the very birth of those children was a “mistake”. A mistake that could have been rectified by aborting an abnormal foetus. So, the question is about one’s moral beliefs and values. This is what puts many at loggerheads with each other and makes it very difficult to choose sides. On one hand, everyone cherishes the right to life, but on the other hand, some would argue that it is not merely life per se, but the quality of life one has, that allows a person to really enjoy the right to life. And, following this argument, a disabled child, who cannot even look after his basic daily needs lacks the quality of life. However, it cannot be said that a disabled/handicapped child cannot achieve the quality of life with extra attention and care. Those children can grow up to be excellent human beings who are contributors to society, in many ways more than “normal” children. All they need is extra effort from others. So, how does one judge this issue? The answer lies in the values of the society and its individuals.