BRUSSELS, December 6, 2010 (LifeSiteNews.com) – The Brussels Court of Appeal has ruled that parents may sue physicians who fail to diagnose “serious disabilities” of pre-born children, assuming that had the parents known they would have had the disabled child killed through an abortion. 

The September 21st ruling said, “certainly, the misdiagnosis did not cause the child’s disability, which existed before the error and which could not be remedied.” But, the court said, “the injury [that] must be compensated is not the disability itself, but the fact of being born with such disabilities.”

The court commented that abortion is in the best interest of the child whose parents would have it killed, noting that since abortion was legalized, “the legislature must have intended to help avoid giving birth to children with serious abnormalities, having regard not only to the interests of the mother but also to that of the unborn child itself.”

In recent years, pre-natal testing and legal abortion have combined around the world to create the new legal action of “wrongful birth” lawsuits. In such cases, parents will sue a doctor or hospital for failing to warn them that a child will be disabled, or for failing to recommend abortion. Damages are sought for medial bills for the child’s maintenance and for psychological counseling for parents.

In “wrongful life” suits, typically the child or his representative sues the doctor for lifelong support.

The growth of such litigation has followed the growth of the abortion industry and the increasing comfort level of courts and legislatures with legal abortion, as well as the increasing popularity of the arguments of the euthanasia lobby, who argue that death is preferable to life with a disability.

In 1982, an English court rejected a wrongful life case, on the grounds that recognizing the claim would “mean regarding the life of a handicapped child as not only less valuable than the life of a normal child, but so much less valuable that it was not worth preserving.”

However, despite still being considered legally questionable by many experts, the practice of litigating for wrongful life and wrongful birth is gaining ground around the world, including in Canada, the U.S., France, Poland, Britain and Australia. In Belgium, the legal situation is even more advanced, with outright euthanasia having been legalized in 2002.

Some jurisdictions, however, are rejecting the notion that disabled children would be better off dead and have a “right” to be killed before birth. In Italy, in 2006, the Court of Cassation ruled that there is “no such thing as a right not to be born.” The ruling said that “so-called ‘eugenic’ abortion is not admissible, unless fetal deformations endanger the mother’s health.”

In 2002, the French government rejected the ruling of its own Supreme Court, passing a law that said that failure to detect a disability in the womb can lead to damages, but only if it is the result of a “blatant error” on the part of a doctor. Damages in these cases can only be awarded to the child.

In April this year, the U.S. state of Oklahoma passed two pro-life bills, one of which prohibited wrongful life and wrongful birth lawsuits.

American bioethics expert and lawyer Wesley Smith wrote this week on the Belgian Appeals Court decision: “This is ‘life unworthy of life’ thinking, ‘useless eater’ invidious discrimination against people with disabilities of the most pronounced kind.

“It breeds a deadly contempt for our brothers and sisters with disabilities.  And the scary part: The Belgians see themselves as the epitome of modern tolerance because they couch their bigotry in oozing words of compa-aaaaa-ssssssion! Vile and disgusting.”