Parents who would have aborted their children can still sue, Israeli Supreme Court rules
TEL AVIV, ISRAEL, May 29, 2012, (LifeSiteNews.com) – Israelis born with birth defects can no longer sue their doctors because they were not aborted; now their parents have to wish their disabled children had never been born instead. That’s the ruling of the Israeli Supreme Court, which voted to end the filing of “wrongful life” lawsuits but allow limited “wrongful birth” lawsuits.
Monday’s decision comes in the face skyrocketing “wrongful life” lawsuits, which have quadrupled in the last ten years, with 186 suits filed last year alone. An increasing number of Israelis have sued, saying had their disabilities been detected during prenatal screening, they would have been aborted – a fate they would have preferred.
“The justices determined that suing for ‘wrongful life’ doesn’t merely pose legal difficulties, but ethical difficulties as well,” the Israeli newspaper Ha’aretz reports. “Defining life as ‘damaged,’ even if it is lived with disabilities, and finding that it would be better for a person never to have been born at all, undermines the value of life, they said.”
The ruling overturned 25 years of legal precedent, which allowed children to file suit for “wrongful life” until age 25.
However, the justices allowed parents to file “wrongful birth” lawsuits that seek damages after the failure to detect a birth defect did not give them the opportunity to abort their child.
The ruling limits parents to seeking damages to compensate for the extra cost of raising children with birth defects if a “causal relationship” can be established – that is, if a mother would have chosen to abort her child and if one of the Jewish nation’s abortion committees would have approved her petition for abortion.
Months before the decision, retired Supreme Court Justice Eliahu Mazza wrote that, compared to Western nations, “the pregnancy termination policy in Israel is far more liberal, especially with regard to late-term abortion, when the fetus is already viable.”
Israel will allow a woman to abort if her child has a birth defect, if the pregnancy occurred out of wedlock, if the mother is younger than 17 or older than 40, or is the pregnancy would harm the mother physically or mentally. In 2004, only one percent of requests for abortions were denied, and 17 percent of requests involved fetal birth defects.
In late 2007 the Chief Rabbinate of Israel ruled abortion immoral except to save the life of the mother.
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“Israel lags behind in its attitude towards the disabled,” Mazza testified before a public committee formed to discuss wrongful life lawsuits, stating such an outlook lacked “respect, a view that regards the person who is different as a source of variety.”
Medical ethicist Carmel Shalev of the University of Haifa, said in Israel, “There is an entire system fueled by money and the quest for the perfect baby. Everyone buys into it – parents, doctors, and labs,” according to New Scientist.
Mazza suggested society provide a public fund for such children’s physical rehabilitation. The Supreme Court recommended the nation adopt his proposal.
The issue of “wrongful birth” lawsuits is not confined to Israel. In March, an Oregon jury awarded Ariel and Deborah Levy $2.9 million after doctors said their daughter, Kalanit, now 4, did not have Down’s Syndrome. They told the jury they would have aborted her had they known. Last September, a Florida jury awarded a West Palm Beach couple $4.5 million after they said they would have aborted their son if they knew he had no arms and only one leg.
Some 28 states recognize wrongful birth lawsuits, according to Christopher Mellino, a Cleveland-based malpractice attorney.
Wendy Hensel, an assistant professor at Georgia State University College of Law and an opponent of “prohibiting eugenic abortion,” wrote in the Harvard Law Review that such lawsuits “serve as a tool of injustice under the guise of benevolent intervention on behalf of individuals with disabilities.”
Arizona, Idaho, Indiana, Missouri, Minnesota, North Carolina, North Dakota, Pennsylvania, South Dakota, and Utah have banned “wrongful life” or “wrongful birth” lawsuits.
Arizona became the most recent last month. Deborah Sheasby, legal counsel at the Center for Arizona Policy, said, “Wrongful cause-of-life actions send a terrible message, saying that children with birth defects aren’t as valuable as others.”
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