the "not to be born" right

From: scerir (
Date: Fri Nov 17 2000 - 13:49:52 MST

Paris, Nov 17 (Reuters)

France's highest appeals court, in a landmark case with broad
legal and ethical implications, ruled on Friday that a youth born
with severe handicaps could be COMPENSATED SIMPLY
FOR BEING BORN rather than aborted.

The parents of a deaf, retarded and nearly blind boy, now 17,
won an appeal for compensation on grounds that doctors and
a medical laboratory should have prevented the birth after finding
out during the pregnancy that his mother had contracted rubella.
The disease, also known as German measles, can cause severe
disabilities to a foetus. Josette and Christian Perruche said they
would have aborted their son Nicolas if they had not been told
there was no danger.

``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 Cour de Cassation said in its decision.
Doctors' groups, the Roman Catholic church and Unapeei, the largest
association defending mentally handicapped children, all declined to
comment on the pioneering decision until it had seen the full legal text.

The court upheld a lower court ruling to grant compensation, which the
Paris prosecutor's office had challenged arguing that would create
a ``RIGHT NOT TO BE BORN" and amount to deciding that some lives
were WORTH LIVING while others were not. The prosecution also argued
that upholding the appeal could set a precedent for children unhappy
with their lives for less serious reasons to also sue for compensation.
Critics warned this concept of ``wrongful birth'' could open the door to
countless lawsuits against doctors if parents were not satisfied with
their babies. Fearing litigation, doctors might pressure women to have
eugenic abortions rather than risk giving birth to less-than-perfect
or ask them to sign waivers before treating them throughout a difficult
pregnancy, they said. This could also upset the basis for France's abortion
law, said Claude Sureau, president of the National Medical Academy.
``If one grants a child the right to be compensated for a mistake committed
while it was an embryo, one recognises its legal rights at that point,''
he told the daily Le Monde. ``That can put a question mark over all our laws
allowing abortion,'' he said. If a handicapped child can sue a doctor for a
mistaken diagnosis, Sureau added, it could presumably also sue its parents
for not opting for an abortion.

But the Cour de Cassation, the highest appeals court in the country,
upheld the decision that Nicolas HAD THE RIGHT TO DAMAGES for his

The parents -- who had already won compensation for themselves in an
earlier trial -- fought the case on behalf of their son, who, with an
quotient of 50 or lower, was not mentally capable of following it.

The case will now go back to the lower court, which should determine the
amount of compensation to pay to Nicolas, who lives in an institution for
severely handicapped.

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