Featured Image
 Dragana Gordic/Shutterstock

VIENNA (LifeSiteNews) — An Austrian doctor was sentenced to pay over €70,000 for not detecting an unborn child’s disability after a lawsuit brought by the parents argued that they would have aborted the child if they had known about the impairment. 

In addition to the initial €76,500 ($83,115) in damages, the Austrian Supreme Court (Oberster Gerichtshof or OGH) decided that the physician must pay the entire child support cost, which could amount to further claims of several hundred thousand euros, according to the lawyer of the parents. 

The gynecologist in the state of Carinthia had not noticed that the child was missing its left arm during several ultrasound scans, and the girl was subsequently born without the parents knowing about the disability. 

“The doctor had overlooked the child’s severe disability. If the diagnosis had been correct, the parents would have decided to terminate the pregnancy,” the parent’s attorney Karin Prutsch-Lang told the Austrian newspaper Kleine Zeitung. 

The parents demanded compensation from the gynecologist for the treatment and therapy costs, general child support, as well as a declaration of his liability for all future damages. 

The defendant argued that he was at most liable, if at all, for disability-related additional expenses incurred, but the OGH did not grant the gynecologist’s appeal. 

The court’s decision states that the “prenatal diagnostician could have recognized during the first trimester ultrasound screening” that a severe physical disability was evident. If he had acted in accordance with the rules of medical practice and informed the parents about the disability of their unborn child, they would have opted for an abortion, it states. The Supreme Court emphasized that this is about the parents’ “right” to “decide autonomously” whether they wanted a child and whether they are willing and able to raise a disabled child according to its needs, given their circumstances. 

“The Supreme Court confirms that doctors are liable for the total expenses incurred by the child, regardless of the child’s state of health, if the birth could have been prevented through proper information or treatment,” Prutsch-Lang explained. 

“This ruling could have far-reaching implications for medical practice and patients’ rights,” she added. 

The danger of viewing a child as a ‘damage case’ 

Susanne Kummer, director of the Bioethics Institute IMABE, told the Catholic news agency Kathpress that this ruling, although unintended, will inevitably promote the perception of the “child as a damage case.”  

The ethicist said it is “absurd” that “parents who accept their disabled child without considering an abortion are now in a much worse position in terms of entitlement to financial compensation than those who say from the outset: ‘We would have aborted the child if it was disabled, now we have to care for it.’” 

According to Kummer, it should not be the case that “people are disadvantaged for affirming life.” In the interests of children’s welfare, it would be more important to create legal regulations” so that there is support for all affected families with disabled children regardless of whether an abortion has been considered or not.” 

Johann Hager, president of the pro-life organization Aktion Leben, demanded a “paradigm shift” in the legislative process and called for the Supreme Court to always uphold the value of human life. 

“Eugenic thinking  as in the case of wrongful birth  must have no place in our society. If children come into their parents’ lives unplanned, this is a major challenge, but one that can be overcome,” Hager said. 

By encouraging parents to sue for unwanted births after unsuccessful birth control interventions, the children are also given the “devastating signal: you were not welcome,” Hager stressed. 

Aktion Leben demands that doctors should only be liable if they have caused a disability in the unborn child. Parents of disabled children should receive “solidarity-based support from society” instead. 

President of the Catholic Laity Council of Austria, Professor Wolfgang Mazal, said in a press release that “[t]he life and personality of a child are undoubtedly inviolable legal rights, and the birth and existence of a child can, of course, not be regarded as damage.” 

“It is therefore incomprehensible that the inhuman diction that a child can constitute a case of damage continues to be used.” 

“A society that views the abortion of disabled children as lawful is knowingly allowing a continuous threat to humanity,” he added.