Disabled Children Want To Sue Doctors For Being Born

By Patrick Goodenough | July 7, 2008 | 8:11 PM EDT

Pacific Rim Bureau (CNSNews.com) - An Australian court is hearing a test case that seeks to establish whether children born disabled as a result of medical negligence can sue doctors for "wrongful life."

A lawyer representing doctors in the case has warned that if the court rules in favor of the children's right to sue for damages, then children born with disabilities could eventually end up suing their mothers for not aborting them.

Moreover, Peter Garling warned, successful "wrongful life" cases could prompt doctors to recommend abortions even in cases of minor disability, to safeguard against future lawsuits.

Doctors and parents could be encouraged to practice eugenics, or selective breeding, in their decisions.

Bringing the case in the New South Wales Supreme Court are three children described as "profoundly disabled" since birth.

Medical negligence has not been proven in each case, but the court agreed to go ahead with the landmark case to establish whether -- if negligence is legally established -- the children have a right to damages in their own right.

Alexia Harriton, who is now 20, was born blind, deaf and mentally retarded after her mother was not diagnosed with rubella in the early stages of pregnancy.

Seventeen-month-old baby Keeden Waller, who was conceived through in-vitro fertilization treatment, inherited a clotting disorder from his father. Lawyers say the IVF clinic should have screened the embryos to ensure the one used did not carry the disorder, which has left the baby with cerebral palsy and uncontrolled epilepsy.

The third child, two-year-old Chelsea Edwards, was born -- after a failed vasectomy -- with a rare syndrome whose sufferers can only communicate with a sound like the mewing of a kitten.

Lawyers representing the children argue that had doctors not been negligent, in the first case, the mother would have known she was carrying a retarded child and would have had an abortion; and in the other two cases, the children would not have been conceived in the first place.

The children's lawyers say the complaint is not about the children having been born, but having to suffer disabilities resulting from having been born.

Lawyer Graham Segal, representing Alexia Harriton, said extraordinary care was required as a result of the disabilities.

"If the [doctor's] advice had been accurate, there would have been no economic loss."

Parents are in certain circumstances, such as a case of a failed vasectomy, able to mount "wrongful birth" claims, arguing that their child was born as a result of medical negligence.

But children born disabled in Australia have until now not been able to claim for damages in their own right, despite facing costs of care and treatment throughout their lives.

David Hirsch, lawyer for the Edwards family, acknowledged the court was navigating in unchartered legal waters for Australia, saying a judge had previously dismissed court action on the grounds that "to allow a claim like this one would be saying in effect there would be some lives not worth living."

In 2000, France's highest court awarded damages to a teenager born with severe mental and physical disabilities after his mother contracted rubella during pregnancy.

The case and two other similar ones caused an uproar, and prompted specialists who carry out neo-natal scans to go on strike in protest. French lawmakers early this year voted to overturn the legal ruling which established the "right not to be born."

A "wrongful life" case in Britain in the 1980s was thrown out, with the court ruling that it was impossible to assess damages because that would involve comparing a life with disabilities on one hand, with non-existence on the other.

See also:
France Moves To End 'Right Not To Be Born' (Jan. 11, 2002)

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Patrick Goodenough
Patrick Goodenough
Spencer Journalism Fellow