France Bans Damages for 'Wrongful Births'

January 11, 2002

By SUZANNE DALEY

PARIS, Jan. 10 - French lawmakers adopted a bill today that

would effectively strike down a court ruling that ordered

financial compensation for a severely disabled boy because

medical errors had allowed him to be born.

The French government hopes the measure can bring an end to

a legal and moral controversy triggered by the case of

Nicolas Perruche, whose congenital defects became clear

soon after his birth in January 1983.

Mr. Perruche cannot hear or speak and is mostly blind. His

mother was exposed to German measles during her pregnancy,

but her doctor advised her that blood tests indicated it

was safe to continue the pregnancy.

When France's highest court upheld the compensation ruling

last year, it caused an uproar here among doctors, jurists

and disabled people who saw it as establishing for the

first time a "right not to be born."

Support groups for disabled people had called the court

ruling demeaning. Ethicists said it encouraged eugenics, by

making it more likely that doctors would recommend

abortions at the slightest sign of a problem during the

pregnancy.

Under the bill, which passed by an overwhelming margin in

an emergency session of the National Assembly, it would be

forbidden to seek damages simply for having been born.

Parents would still be able to seek indemnity from some

costs in very limited cases.

Last week, French doctors outraged at the court ruling and

reeling from increases in their malpractice insurance

premiums began a strike of sorts, refusing to carry out

routine ultrasound scans on pregnant women, saying they

could be sued if a disabled baby was born.

Dr. Guy-Marie Cousin, the secretary general of the National

Syndicate of Gynecologists and Obstetricians, said he could

not promise that the more than 2,400 members of the union

would be back at work Friday after the Parliament's action.

"The new law is a good law," Dr. Cousin said. "It answers

the ethical problems, but there are still issues we need to

think about." Dr. Cousin said the union still wanted a

written document that very clearly spells out a doctor's

obligations and describes a system for informing patients

about prenatal tests and that they could not eliminate all

risks of disabilities.

In 1982, Mr. Perruche's mother, Josette, then just one

month pregnant, found her 4-year-old daughter covered with

red spots. The child was diagnosed with German measles, and

Mrs. Perruche told her doctor that if she had been infected

she wanted an abortion rather than risk giving birth to a

severely handicapped child. Mrs. Perruche then underwent

two blood tests, two weeks apart.

According to court documents, the test results were

contradictory, but instead of pursuing the question, the

doctor assured Mrs. Perruche that it would be safe to go on

with the pregnancy. Later, a retest would show the lab had

made a mistake with the blood tests. Within two years, Mrs.

Perruche had suffered a mental breakdown, requiring

psychiatric care.

After 13 years of litigation, a court ruled that Nicolas's

parents were entitled to about $68,000 with a further

$250,000 to go for the cost of care. After a series of

appeals, France's equivalent to the Supreme Court

apparently awarded a much higher undisclosed sum of damages

to both the boy and his family.

Today, Mr. Perruche is cared for by a government

institution. He has had little contact with the world

around him, his heart is weak, and he moves only when

carried or put into a wheelchair.

Although lawyers familiar with the decision said the court

never used the words "wrongful birth," the ruling was

widely interpreted to have established the concept.

Two subsequent rulings awarded damages in similar cases in

which parents of disabled children argued that had

disabilities been detected, they would have chosen to have

the pregnancies terminated.

The bill passed by the National Assembly today is scheduled

to go before the Senate on Jan. 22, but that body has

little power to block or even significantly change the

measure.

http://www.nytimes.com/2002/01/11/international/11FRAN.html?ex=1011713450&ei=1&en=98c9af401179fd64