The right not to be born and the wrongful life action - PowerPoint Presentation

Slide1

The right not to be born and the wrongful life action

Comparative

analysis

between

Civil

and Common Law

systems

-The

french

Perruche

case

-

Latest

Italian

Cassation

about

this

issue

-

Mckay

v.

Essex

Slide2

To be or not to be?Slide3

General definitions

-right

not

to be

born

-

wrongful

pregnancy

or

conception

-

wrongful

birth

-

wrongful

life

Comparative

approach



Transidiciplinary

method

Slide4

The Perruche Case

-In

Novemeber

2000 the French Court of

Cassation

held

a

doctor

liable

for

having

failed

in

detecting

a

serious

congenital

deformation

of a

fetus

.

-The Court

ordered

him

to compensate

not

only

the

mother

for

hurting

her

right to

abortion

,

but

also

the

child

Nicolas for

being

born

in

those

terrible

conditions

, for

having

had

such

a

miserable

life.Slide5

The facts and

medical

aspects

of the

Perruche

case

The

doctor

failed

the

examinations

concerning

rubella

on Mrs.

Perruche

, the boy Nicolas

was

born

with severe

disabilities

that

resulted

from

congenital

rubella

contracted

during

his

intrauterine life.

Rubella

can

cause congenital rubella syndrome in the newborn, it compromises cardiac, cerebral, ophthalmic and auditory defects. The infections usually happens on the first semester of pregnancy.

Many

mothers who contract rubella within the first critical trimester either have a miscarriage or a still born baby. If the baby survives the infection, it can be born with severe heart

disorders, blindness, deafness and other organ disorders. This is what happened to Nicolas. Slide6

The court decision

At the trial the Court

found

the

laboratory

and the

doctors

failing

to

provide

the woman with the

attendive

and

diligent

care

which

she

had

the right to

expect

. The

doctor

didn’t

fulfill

his

duty to

provide

information and

consueling

so

as

to

allow

his

patient

to

make

an

informed

decision

.

Mrs

Perruche

in

fact

informed

the

doctor

that

she

would

have

asked

an

abortion

if

she

was

suffering

rubella

. The

negligence

of the

laboratory

and

doctors

had

deprived

her

right to

legally

terminate the

pregnancy

.

What

is

completely

new

about

this

judgement

is

that

the court

recognised

a

compensation

to the

child

as

well

,

not

just to the

mother

. The

cassation

allowed

the

compensation

to Nicolas for

being

born

in

such

a

bad

condition

.Slide7

The harming

of the French

Medical

Liability

rules

(

legal

point

of

view)

In

order

to determinate a

medical

liability

in the

french

legal

system

three

requires

are

necessary

:

-The

doctor

must

have

committed

a fault (

negligence

)

-The

plaintiff

must

have

suffered

damages

-

There

must be

a casual link

between

the

doctor’s

fault and the

plaintiff

damages

.

In the

Perruche

Case

is

missing

the

third

condition

, the

negligence

of the

doctor

didn’t

cause the

harm

: the

harm

was

caused

to

rubella

contracted

by the

mother

during

the

pregnancy

.

It

was

impossible

to

establish

that

the

doctor’s

negligence

caused

the

child’s

disability

,

because

disability

was

due to

rubella

,

not

to the

failure

of the

doctor

in

detecting

the

presence

of the

birth

defect

. The

Perruche

judgement

, on the

legal

poit

of

view

,

harmed

the

rules

of

french

medical

Liability

.

The

only

event

that

the

negligence

of the

doctor

caused

was

the

child’s

birth

..Can the

birth

of a

child

with

disabilities

be

considered

an

harm

or an

injury

?Slide8

Ethical

considerations

Considering

the

birth

of a

disabled

child

as

an

harm

is

not

acceptable

on the

ethical

point

of

view

:

allowing

it

would

lead

to a

certain

kind

of

Eugenics

. The French

legal

system

already

contains

provisions

that

might

be

seen

as

the

begging

of

eugenics

. For

istance

it

is

allowed

to a woman to terminate

her

pregnancy

if

she

learns

that

she

will

give

birth

to a

child

with

sever

,

incurable

illness

.

These

provisions

must be

balanced

with

measures

that

provide

care for

people

actually

suffering

from

these

diseases

. Life

cannot

be

considered

as

an

injury

,

even

if

it

consists

in a

disabled

life;

otherwise

disabled

people

could

be

discriminated

. Slide9

Legal criticisms

of the

Perruche

jurisprudence

1.

I

t

would

have

seriously

increased

the

malpractice

suits

against

doctors

.

2.

It

would

have

encouraged

children

with

disabilities

to

sue

their

mothers

for

not

terminating

their

pregnancy

3.

It

would

have

considerably

increased

the

professional

liability

insurance

premiums

.Slide10

The court motivation

In

this

judgement

the

motivation

is

based

on a

weak

argument

. The

judges

didn’t

explicitly

declare

that

the

birth

of a

disabled

child

can be

considered

as

an

harm

,

but

this

is

the

inevitable

consequence

of

their

way of

thinking

. The

judges

, out of a

sense

of

equity

, made a

decision

to

ensure

that

the

child

received

a

compensation

.

Their

idea

is

that

the

Perruche

wouldn’t

have

asked

this

compensation

if

they

had

had

an adeguate

support

for

their

child’s

care.

They

emphatise

the

inadequacy

of French

measures

to

provide

funding

and care to

those

suffering

from

permanent

and

serious

disabilities

.

If

State

had

done

its

duty in

assisting

those

families the court

would

have

not

oversteped

thier

bounds

using

liability

to

provide

such

assistance

.

The

Perruche

jurisprudence

despite

of the multiple

criticisms

mantained

its

course

untill

the legislature

intervented

: On the March of 2002 the

Parliament

approved

the

Koucher

act

or “

anti

perruche

act

”. The

m

ain

principle

is

that

no

one

can

avail

themselves

of an

harm

from the

fact

of the

birth

alone.

Another

law

passed

in 2005

provides

financial

support

to families in the

event

of

certain

disabilities

of the

childen

,

but

it

covers

only

the

basic

needs

.Slide11

Italian Court of

Cassation

United

sections

sent.n.25767/2015

The

United

sections

of the Court of

cassation

were

asked

to

pronounce

about

the

legitimacy

of the

unborn

child

in

asking

the

compensation

to the

physicians

for

their

wrongful

life.

According

to

this

judgement

the

child

has

the

whole

legitimacy

of

acting

against

the

doctor

for

his

negligence

during

the

pregnancy

,

even

if

the

child

was

not

born

yet

. The

main

problem

concerns

the

kind

of

request

involved

:

not

being

born

cannot

be

considered

as

a

good

of life and the

legal

system

cannot

protect

from

being

born

. The

S

tate in

fact

protects

the

goods

of life

not

the

goods

of

not

life. In the

motivation

there

are

several

references

to

other

countries

jurisprudence

about

this

issue

,

such

as

Germany, U.S. and France.Slide12

Wrongful life

action

in Common Law

Is

it

possible

to

allow

an

action

whose

main

porpourse

is

to

obtain

a

compensation

for

being

born

from a

doctor

or from the

mother

?

Zepeta

v.

Zepeta

,

1963 Illinois: an

unwealthly

child

sued

his

father

fro

allowing

him

to be

born

illigitimate

, the

plaitiff

asked

for the

damages

for the

deprivation

of

his

right to be a

legitimate

child.the

legitimacy

of

this

action

was

denied

.

Gradin

v.Gradin

1980 Michigan: the

child

sued

his

own

mother

for

contuining

to take

drugs

during

pregnancy

and

not

realising

she

was

already

seven

weeks

pregnant

. Slide13

McKay v.

Essex

Area

Health

Authority 1982

In

this

case the court of Appeal

considered

claims

arising

from the

birth

of a

child

born

as

a

result

of an

infection

of

rubella

suffered

by the

mother

during

the

pregnancy

.

If

there

hadn’t

been

negligence

in the

defendant

managing

the

pregnancy

the

mother

would

have

had

an

abortion

and the

child

would

not

have

suffered

for

having

such

a

painful

life.

The court

objects

the

wrongful

life

claims

on

three

grounds

:Slide14

The sanctity

of human life

The

main

point

of

this

argument

consists

into

the

fact

that

the

legal

system

support

life and

existence

:

there

are

exception

to

this

principle

such

as

the

abortion

Act

of 1967.

Except

for

specific

situation

such

as

rape,

it

would

be

contrary

to the public policy to

recognise

such

a

claim

. Life,

even

with

serious

disabilities

, can

never

be an

injury

,

it

is

always

valuable

. The court

about

this

argument

has

a

very

strict

and

rigid

prospective

,

because

in reality

there

might

even

be

cases

where

this

idea

cannot

justify

the

refuse

of the

claims

of the

plaintiff

.Slide15

Nature of doctor

duty

Tort

law of

medical

liability

is

concerned

with

defendants

who

make

the

plaintiffs

worse

,

not

with

those

who

merely

make

them

exist

. The

medical

duty

consists

in

preserving

life

not

in

preserving

not

existance

,

there

is

no duty for the

doctor

to

provide

the service of

not

living.

Paradoxically

the

doctor

could

be

sued

for

respecting

his

duty of

preserving

human life. Slide16

Identify the

quantity

of the

damages

In

McKay

v.

Essex

the court

couldn’t

quantify

the

damages

and

was

also

unable

to

identify

compensatable

damages

. How can a court

begin

to

evaluate

non-

existance

? The

same

problem

was

faced

by american

courts

for the

wrongful

life

actions

,

many

american

judgements

are

specifically

mentioned

in

Mckay’s

motivation

. For

istance

in

Gleitman

v.

Cosgrave

(1967) the New Jersey court

rejected

the

claim

by a

child

born

disabled

on the

grounds

that

the

action

didn’t

give

rise to

damages

cognisable

in law. Slide17

Responsibility of the

mother

to

her

fetus

The Law

commission

considered

this

issue

and

at

the end

decided

that

an

action

of a

child

against

its

own

mother

resulting

from

her

negligence

during

the

pregnancy

should

not

be

allowed

. In

fact

a

claim

of

this

type

would

compromise the

parent-child

relationship

and

might

even

be

used

as

a

dangerous

weapon

in

matrimonial

disputes

. The English

Legilation

, the

C

ongenital

Disabilities

Civil

Liability

act

of 1976,

excludes

claims

by a

child

against

its

mother

except

for

injuries

substained

during

trafic

accidents

. In

recent

years

this

issue

might

be

differently

solved

, the

fetus

has

emerged

as

a

patient

in

its

own

right

specially

in

cases

concerning

the use of

drugs,alcool

or

tobacco

during

pregnancy

. Slide18

Is the

wrongful

life

action

really

inadmissable

?

According

to some american

jurisprudence

and to

certain

scholars

,

this

whole

situation

could

be

seen

with a

different

point

of

view

: the

injury

has

to

been

seen

not

in the

birth

alone

but

with the composite

concept

of the

birth

of the

plaintiff

with a

defect

. The

child

has

been

deprived

of the

fundamental

right of

being

born

as

a

whole

functional

human

being

. The

point

in the end

does

not

consist

in

protecting

the

fact

of

not

being

,

but

the

fact

of

being

born

with severe

diseases

.

Not

recognising

the

pain

of the

child

would

be

inacceptible

from

this

point

of

view

.Slide19

Conclusion

The

doubtful

aspect

of the

wrongful

life

action

lies

in the

fact

that

the court

should

explicitely

say

to the

plaintiff

“

it

would

be

better

if

you

had

not

been

born

”.

This

judgement

would

seriously

compromise the

value

of human life

which

the

courts

are more

usually

called

to

endorse

. The

disabled

should

be

helped

and

sometimes

compensated

for the

suffering

which

their

lifes

may

entail

,

but

at

the

same

time none can

legally

judge

if

a life

is

worth

to be

lived

or

not

.