AUCKLAND, New Zealand, November 4, 2013 (LifeSiteNews.com) – The New Zealand Court of Appeal has decided that the parents of a baby who was born in 2007 with spina bifida, despite being given a clean bill of a health at a 20 week ultrasound, may be eligible to receive compensation under the nation’s accident compensation scheme.
The mother, whose name has not been released, has claimed that 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.
Although the routine anatomy scan was performed at 20 weeks gestation, no anomalies were found by the radiographer.
Independent specialists have examined the scan images and found that there was evidence of spina bifida present.
The mother argued that he continuance of the pregnancy was a “personal injury” and has been seeking compensation. However, the Accident Compensation Corporation (ACC) has argued that compensation cannot be paid out as the situation does not meet the criteria for personal injury.
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Ongoing operations and physiotherapy is part of daily life for the family. The child walks with the aid of a walking frame.
Previous appeals to the District and High Courts have been dismissed.
The case has now been referred back to the District Court, where it will be decided whether the mother would have been able to obtain an abortion under New Zealand law.
An abortion after 20 weeks gestation can only be obtained lawfully in New Zealand if “the person doing the act believes that the miscarriage is necessary to save the life of the woman or girl or to prevent serious permanent injury to her physical or mental health.”
The ACC says that the woman would not have been able to obtain the abortion.
Disability advocate Mike Sullivan is appalled at the decision. “This is what happens,” he says “the children become reduced to nothing – wrong even to exist.”
The underpinning attitude behind the decision is that those with disability, both born and unborn “are the true burden on society,” he said.
Earlier this year, Philip Schmidt, the lawyer representing the mother, noted that whatever the Court’s decision, it “will have a significant influence on what claims for pregnancy-related injury will be covered by ACC in the future.”