Hilary White, Rome Correspondent

Belgium court allows parents to sue for ‘wrongful birth’ when disabled child born

Hilary White, Rome Correspondent
Hilary White, Rome Correspondent

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.”

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New York farmers stop hosting weddings after $13,000 fine for declining lesbian ceremony

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By Dustin Siggins

New York farmers Robert and Cynthia Gifford, who were ordered last week to pay $13,000 for not hosting a same-sex "wedding," say they are closing that part of their operation.

"Going forward, the Giffords have decided to no longer host any wedding ceremonies on their farm, other than the ones already under contract," said Alliance Defending Freedom (ADF) lawyer James Trainor. ADF represented the Giffords in their legal fight against New York's non-discrimination law.

Last week, the Giffords were ordered to pay a $10,000 fine to the state of New York and $3,000 in damages to a lesbian couple, Jennifer McCarthy and Melisa Erwin, who approached them in 2012 about hosting their "wedding." The Giffords, who are Roman Catholic, said their religious convictions would not let them host the ceremony, but that McCarthy and Erwin could hold their reception on their property.

Unbeknownst to the Giffords, lesbian couple recorded the two-to-three minute conversation. After declining to hold the reception on the Giffords' farm, on which they live and rent property, the lesbian couple decided to make a formal complaint to the state's Division of Human Rights.

Eventually, Judge Migdalia Pares ruled that the Giffords' farm, Liberty Ridge Farm, constitutes a public accommodation because space is rented on the grounds and fees are collected from the public. The Giffords argued that because they live on the property with their children, they should be exempt from the state law, but Pares said that this does not mean their business is private.

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Trainor told TheBlaze that the Giffords' decision to end wedding ceremonies at Liberty Ridge “will hurt their business in the short run," but that was preferable to violating their religious beliefs.

“The Giffords serve all people with respect and care. They have hired homosexual employees and have hosted events for same-sex couples,” he said.

However, "since the state of New York has essentially compelled them to do all ceremonies or none at all, they have chosen the latter in order to stay true to their religious convictions," Trainor explained to LifeSiteNews. "No American should be forced by the government to choose between their livelihood and their faith, but that’s exactly the choice the state of New York has forced upon the Giffords."

"They will continue to host wedding receptions," said Trainor.

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South African mom files ‘wrongful life’ lawsuit on behalf of Downs son

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A South African woman has launched a "wrongful life" lawsuit against the Cape Town-based Foetal Assessment Centre, claiming a failure to inform her that the child she was carrying was at risk of having Down Syndrome prevented her from aborting her baby.

A twist in this lawsuit is that, unlike other "wrongful birth" lawsuits, the mother in this case missed the time limit to file the claim on her own behalf, so she is asking the South African Constitutional Court to allow her to sue the center for “wrongful life” on behalf of her now-born son.

“You have a duty to tell my mother carrying me that I'm malformed so that she can make an informed decision as to whether or not to carry me to term,” the statement of claim against the Foetal Assessment Centre reads, according to SABC News.

“It is not as if the foetus is sort of putting up its hand and saying why you didn’t destroy me," the mother's lawyer, Paul Hoffman, explained to Deputy Chief Justice Dikgang Moseneke. "The foetus is complaining that its malformation, its development is the result of the bad advice that was given.”

The SABC report did not say what compensation the woman is seeking.

The scope of the case is similar to that of a New Zealand couple who won a lawsuit claiming monetary compensation after a routine 20 week ultrasound scan failed to discover that their daughter had spina bifida.

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The mother, whose name has not been released, claimed that the continuance of the pregnancy was a “personal injury,” and, had she been given the correct diagnosis after that scan, she would have aborted her daughter.

"We consider that the continued pregnancy of the appellant following a misdiagnosis in the 20 week scan is capable of being an injury suffered by the appellant,” the court ruled, and directed the New Zealand Accident Compensation Corporation (ACC) to make the woman eligible for compensation for the ongoing surgical and physiotherapy expenses incurred by their child.

New Zealand disability advocate Mike Sullivan said the underpinning attitude behind the decision is that those with disability, both born and unborn, are seen as a burden on society.

“This is what happens,” Sullivan said, when “the children become reduced to nothing – wrong even to exist.”

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PBS defends decision to air pro-abortion documentary ‘After Tiller’

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By Dustin Siggins

Under pressure for showing the pro-abortion documentary "After Tiller" on Labor Day, PBS' "POV" affiliate has defended the decision in response to an inquiry from LifeSiteNews.

The producers of the film say their goal with the documentary, which tells the stories of four late-term abortion doctors after the killing of infamous late-term abortionist George Tiller, is to "change public perception of third-trimester abortion providers by building a movement dedicated to supporting their right to work with a special focus on maintaining their safety.” 

POV told LifeSiteNews, "We do believe that 'After Tiller' adds another dimension to an issue that is being debated widely." Asked if POV will show a pro-life documentary, the organization said that it "does not have any other films currently scheduled on this issue. POV received almost 1000 film submissions each year through our annual call for entries and we welcome the opportunity to consider films with a range of points of view."

When asked whether POV was concerned about alienating its viewership -- since PBS received millions in federal tax dollars in 2012 and half of Americans identify as pro-life -- POV said, "The filmmakers would like the film to add to the discussion around these issues. Abortion is already a legal procedure."

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"This is an issue that people feel passionately about and will have a passionate response to. We are hopeful that the majority of people can see it for what it is, another lens on a very difficult issue." 

In addition to the documentary, POV has written materials for community leaders and teachers to share. A cursory examination of the 29-page document, which is available publicly, appears to include links to outside sources that defend Roe v. Wade, an examination of the constitutional right to privacy, and "a good explanation of the link between abortion law and the right to privacy," among other information.

Likewise, seven clips recommended for student viewing -- grades 11 and beyond -- include scenes where couples choose abortion because the children are disabled. Another shows pro-life advocates outside a doctor's child's school, and a third is described as showing "why [one of the film's doctors] chose to offer abortion services and includes descriptions of what can happen when abortion is illegal or unavailable, including stories of women who injured themselves when they tried to terminate their own pregnancies and children who were abused because they were unwanted."

Another clip "includes footage of protesters, as well as news coverage of a hearing in the Nebraska State Legislature in which abortion opponents make reference to the idea that a fetus feels pain." The clip's description fails to note that it is a scientifically proven fact that unborn children can feel pain.

The documentary is set to air on PBS at 10 p.m. Eastern on Labor Day.

Kirsten Andersen contributed to this article.

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