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
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
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