Jeanne Smits, Paris correspondent

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Court orders gynecologist to pay parents who would have aborted disabled daughter

Jeanne Smits, Paris correspondent
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December 23, 2011 (LifeSiteNews.com) - A law court in Belgium has ordered a gynecologist to pay damages to the parents of a handicapped girl for not having told them she would probably be born with spina bifida in time for them to choose to have an abortion.

Each parent is to receive 50,000 euro compensation (over $65,000 US each) from the gynecologist who the court said “should have” spotted the heavy risk that the baby would be affected by the condition during tests made at 15 weeks pregnancy. The court of appeal of Gent confirmed the earlier judgment of Kortrijk tribunal which decided the gynecolocist had committed a “fault.”

The little girl is now 9 years old, and besides her spina bifida, which keeps her to her wheelchair, she is also incontinent and mentally handicapped.

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During the pregnancy the doctor being sued had reportedly referred the couple to a colleague at the Kortrijk hospital. When this doctor informed the parents that the child they were expecting would suffer from a serious form of spina bifida, the pregnancy was already 33 weeks along, “too late” for an abortion.

Two years after the girl’s birth her parents decided to take legal action against the first doctor, who unsuccessfully tried to shift the case over to his hospital colleague, arguing that he should have recommended abortion to the parents when he informed them at 33 weeks.

Neither the tribunal nor the court of appeal accepted this line of defense; instead, the damages awarded to the parents were doubled by the appeals court.

The likely immediate effect of the judges’ decision is that Belgian doctors will be pressed to make doubly sure that the unborn child is free from all “defects,” and to recommend abortion when it is not.

The case also reveals a lack of clarity of Belgian abortion law, which is implemented differently from one region and even from one hospital to another.

Abortion is legal in Belgium up to 12 weeks of pregnancy. Beyond that term, it is permitted when the unborn child has a grave and incurable condition, or when the pregnancy is endangering the life of the mother. The law has no fixed deadline and in theory the abortion can take place at any time before birth.

The couple’s legal counsel, Thierry Vansweevelt, who is also professor of Medical Law at the University of Antwerpen, called Thursday’s decision by the court of appeal “important.”

“The judge decided that the situation is unclear for everyone, including the hospital gynecologist whom we are told should have advised the woman (to abort). For doctors as well as for pregnant women there should be certainty about whether abortion is possible up to the day before birth,” he commented.

Vansweevelt also recommended that the National Abortion Commission which registers all abortions in Belgium should keep count of all “birth terminations” taking place after 24 weeks: “That would at least allow us to know how important that group is. At this point the Commission only asks whether the abortion took place before or after 12 weeks,” he said.

This means that the Belgian decision to compensate a couple for the birth of a seriously handicapped child could end up causing even more dire consequences for that country. While at present some hospitals are submitting all abortions beyond 12 weeks pregnancy to “ethical” commissions, others doing so only beyond the viability limit, a “clarification” of the law would probably widen the scope of abortion without question when serious conditions are diagnosed, and could scrap the time limit altogether, bringing Belgium in line with its Dutch and French neighbors.

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