Is there a right NOT to be born?

29th July 2003, Comments 0 comments

An ethical and medical crisis has erupted in France over a controversial court ruling to award compensation to a handicapped boy because he had been allowed to be born. Hugh Schofield reports on the furore of the ruling and government moves to have it quashed.

Socialist Prime Minister Lionel Jospin has personally flung his weight behind a bill intended to supersede the so-called Perruche ruling, named after the court case which ended in an award of financial damages to a badly brain-damaged boy because he had not been aborted.

Under the proposed new law - technically an amendment to a private member's bill which went before the National Assembly - it will be forbidden "to take advantage of damages simply through the fact of having been born".

The Perruche judgment, which was made in November 2000, set a pattern for rulings in two similar cases, sparking an angry reaction from doctors who said they were unfairly being made
responsible for failing to spot defects in the womb.

The legal precedent has been widely attacked by doctors, jurists and disabled people as establishing a right "not to be born".

Specialists who conduct ante-natal screenings saw their insurance premiums increase by up to ten times, and many have been on strike since 1 January.

Ethicists said the ruling encouraged eugenics, by making it more likely that doctors would recommend abortions at the slightest hint of a problem for fear of being sued, while disabled campaigners said it devalued the lives of those born with a handicap.

"What is unbearable about this debate is that we - people who are handicapped - have the feeling that we are 'in the way,'" Jean-Christophe Parisot, president of the Collective of Handicapped Democrats, wrote in Liberation newspaper.

The new law, which enjoys cross-party support, says that failure to detect a disability in the womb can lead to damages, but only if it is the result of a "blatant error" on the part of a doctor - and then only the parents, not the child him or herself, qualify.

If damages are awarded, then the doctor in question - and thus his or her insurance company - are not liable for money that would be paid in any case the social security system, the law states.

Opponents of the Perruche ruling have broadly welcomed the government's initiative. Patrick Gohet, president of the National Union of Parents and Friends of the Mentally Handicapped, called for a big vote in favour.

"That would be a good gesture to the families of handicapped people and a very positive signal," he said.

Some campaigners, however, argue that the original ruling was actually honestly inspired by a desire to help parents who bear a huge financial burden in bringing up a disabled child. They call for the level of state provision to be improved to reduce their needs.

January 2002

Copyright AFP

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