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MORE ON WRONGFUL BIRTHS

The highest court in France awarded compensation to the parents of children born with handicaps for their "wrongful birth," based on the fact that the physicians allegedly failed to advise the parents of a "defect" in their unborn child. (See Reality, January/February 2002, "Wrongful Birth, p.16"). In two decisions, one in July 2000 and the other in November, 2001, the French court held, in effect, that there was a legal right not to be born; some children are better off dead, and compensation should be paid for their "wrongful birth."

The medical association in France was furious with the decision, as it believed it would inevitably lead to increased liability for physicians. As a result, in early January, French pre-natal physicians stopped performing ultrasound scans on pregnant women, not only to protect themselves from the court ruling, but also to publicize the fact that ultrasound scans are not always reliable. According to the National Association of Obstetricians and Gynecologists in France (representing 2,400 such physicians) ultrasound can only detect 60% to 70% of malfunctions and disabilities. As a result, the physicians clarified that they should not be held responsible for failures to detect abnormalities in the pre-born child.

In view of the emergency created by these physicians, the French National Assembly voted on a new law on January 10, 2002, in an attempt to overrule the court's decision. This law was based on a law initially proposed by a pro-life member, M. Mattéi, last year. This new law provides that the failure to detect a disability in the womb can lead to damages being paid to the parents (not the child) for the child's care and upkeep.

However, a French pro-life group, La Trêve de Dieu (The Truce of God) is concerned that the legislation does not protect the handicapped, as it is alleged to do, because it still permits the parents of handicapped children to receive compensation for their care because of the failure to detect an abnormality before birth, which caused the parents to miss the opportunity of having an abortion. This provision, it claims, will still encourage physicians to recommend abortion to prevent being sued for a misdiagnosis.

As well, to benefit from this provision, the parents will have to declare that they would have aborted their child had they known of its condition prior to birth. On the other hand, parents who respect human life and who would not have had an abortion if they had known of the abnormality, will not be entitled to compensation. In short, by this provision, the state appears to be encouraging detection of an abnormality and the abortion of a handicapped child.

The prompt action by the French physicians to the "wrongful birth" decisions of the court and the necessity for the French National Assembly to pass a new law to overrule the court decision at least puts our own Supreme Court of Canada on notice that this is a very sensitive issue, one that will cause a similar uproar, should it decide to rule in support of "wrongful birth" in the Manitoba case, (Lacroix (litigation guardian) v. Dominique) when it is argued before it later this year.

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