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In a recently released court decision, Belgian Court of Appeals affirmed the “wrongful life” claim of a child born with disabilities that were misdiagnosed during pregnancy.

Genethique, a French website focusing on bioethical issues, reported:

“The Court ruled that the child, represented by his parents, could claim damages from physicians for the injury of being born disabled. ‘Certainly, the misdiagnosis did not cause the child’s disability, which existed before the error and which could not be remedied,’ the Court considered. ‘However, the injury which must be compensated is not the disability itself, but the fact of being born with such disabilities.’”

The Appeals Court based its decision – at least in part – on the intent of Belgian lawmakers in passing a law allowing “therapeutic” abortions. The Court affirmed that lawmakers likely took into account the concerns of women who wish to avoid giving birth to (and caring for) children with disabilities or serious illnesses as well as the interests of the unborn children.  Thus, if the disability of the child had been properly diagnosed, this child would have had a right to be aborted – according to the logic of the court.

Sadly this is not the first time such a ruling has been made. In 2004, a trial court in Brussels made a similar ruling in a case involving a child born with Down’s syndrome.  In addition, there were a series of cases in France in which parents sought compensatory damages for the “wrongful life” of their children, who would have been aborted had their disabilities been diagnosed during pregnancy.  Thankfully, in France, the doctors rebelled, refused to conduct prenatal testing and lobbied for legislation, which passed in 2002, that brought “wrongful life” suits to an end…

However, at least in Belgium, the tables seem to be turning again.

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