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DAMAGES FOR "WRONGFUL BIRTH"

Occasionally, in Canada, parents of children born with disabilities have sued their physician, claiming damages for the "wrongful birth" of their child because of the physician's alleged negligence in failing to advise them of problems with their child, prior to birth. To date, however, Canadian courts have declined to award such damages.

The most recent example of this is a decision of the Manitoba Court of Appeal, handed down on June 29, 2001. In that case, (Lacroix (litigation guardian) v. Dominique), the mother was on medication to control her epilepsy. Her physician, according to the findings of the court, did not inform her of the possible risks to an unborn child if she continued with the medication during pregnancy. The mother's first child was normal, but her second child was born with physical abnormality and was diagnosed as being developmentally delayed and "retarded."

A three-member panel of the Manitoba Court of Appeal refused to award compensation for the so-called "wrongful birth" of the child.

In his judgment, Mr. Justice Twaddle, on behalf of the court, concluded that he was unable to accept that an action for wrongful life should be recognized in Canada. He quoted, with approval, previous decisions in which courts have stated that if compensation was granted in such cases, then it would mean that doctors would be construed as having a legal duty to ensure a child's destruction. Also, according to Judge Twaddle, a court is unable to evaluate non-existence, as the court has no knowledge of it, and therefore, determining damages would be an impossible task.

French Court Reaches A Different Conclusion

The French Cour de Caisation, however, which is equivalent to Canada's Supreme Court, whose decision cannot be appealed, came to the opposite conclusion last year. In that case, a woman had given birth 20 years ago to a son who was severely disabled (the case has been before the courts for 13 years) and the court held that she was entitled to compensation because she contacted German measles in early pregnancy and had requested an abortion at that time. However, laboratory tests and her doctor failed to detect the problem with the unborn child, and since she believed the child to be without problems, she carried her pregnancy to term.

The decision by France's highest court, which recognized the concept of "wrongful birth," caused an uproar in the country. The decision was seen as signaling that an unborn child had a "duty" to be aborted, or, at least, that a handicapped child had a duty to accept that his/her birth was a mistake.

Doctors in France, too, were angry with the decision as they saw the ruling as opening the door to malpractice suits which would drive up their insurance costs and, therefore, lead them to recommend even more abortions, in order to protect themselves from liability. According to Dr. Jacques Milliez, head of gynecology at Saint-Antoine Hospital in Paris, "This is the first time that doctors have been condemned for not having killed." (International Herald Tribune, October 21, 2001)

It is interesting, too, that the French court, when handing down this decision, tried to prevent controversy by carefully avoiding the words "wrongful birth" or "quality of life" in its decision. Nonetheless, the impression was clearly left that the life of the handicapped child was a life of lesser quality and validates the principle that the birth of a handicapped child in itself is an abnormality and that such an existence is an error that should be eradicated. Such a decision will only lead to increased discrimination against the disabled, as their existence will be regarded by many as unacceptable, based on the premise that their parents should have eliminated them prior to birth by way of an abortion. It is inevitable that the parents of disabled children will also become the object of public scorn because of the wrongful birth decision, as they will be regarded as having been "irresponsible" in allowing their child to be born. Also, we can predict, within two decades, public support for services for the disabled, funded by the taxpayer, will diminish on the grounds if that if parents are foolish enough to allow such a child to be born, then they can bear the costs of the child's care themselves.

To confirm its "wrongful birth" decision, unfortunately, the French high court reached a similar conclusion in yet another "wrongful birth" case on November 28, 2001. In that case, a child born with Down Syndrome was held by the court to have a legal right to never have been born and on this basis, was entitled to sue the doctors who failed to diagnose his disability during pre-natal screening.

According to Tom Koch, Professor of Gerontology at Simon Fraser University and a Research Associate in bioethics at Toronto's Hospital for Sick Children (National Post, December 5,2001), the French legal precedent raises the troubling issue of eugenics, or controlled breeding, a practice undertaken by the Nazis.

The French decisions, it should be noted, differ from medical malpractice suits where parents seek compensation for the financial burden of raising a disabled child because of incorrect pre-natal diagnoses. In contrast, wrongful birth cases provide that the damages be awarded because the child's life is not worth living and should never have been born.

Canadian Wrongful Birth Case Appealed
to the Supreme Court of Canada

Unfortunately, the situation with regard to "wrongful birth" seems so be coming to a head in Canada, as the Manitoba decision is now on appeal to the Supreme Court of Canada for final resolution. This appeal is very worrisome. Indeed, a decision in favour of the concept of wrongful birth will have serious permanent repercussions to society and to the disabled. We trust that such a decision will not be handed down or else we will face a very unpleasant future.

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