Compensated for having been born” “

Can life be considered a detrimental or prejudicial condition? That is the question that is being posed by the French political class at this time, following two shock sentences of the Supreme Court of Appeal, that recognize the prejudice of having been born handicapped in the case of two handicapped children, Nicolas and Lionel. These cases have aroused strong reactions and given rise to deep concern in public opinion. Nicolas was born following a diagnostic error. The physician treating his mother failed to diagnose the German measles from which she was suffering. She had told the obstetrician that she wanted to have an abortion in the event of an anomaly being identified by the prenatal diagnosis. Nicolas was affected by a degenerative handicap. His parents denounced the diagnostic error and obtained compensation. But they went even further. They asked for compensation not only for the error in diagnosis but also for its consequences: their son, they alleged, ought not to have been born. On 17 November 2000, the Supreme Court of Appeal pronounced a sentence that recognized the prejudice of being born handicapped. So the physician was condemned for something for which he was not responsible: the handicap of Nicolas, who suffers the “prejudice” of living. The life of Nicolas was indemnified 100%. It’s not his handicap that is indemnified but his life! With this sentence a historic threshold has been passed. It has set a judicial precedent and caused a furore. “The Court of Appeal has opened a Pandora’s box. Non-existence is preferable to life! But there is no such thing as zero risk. There exist handicaps, anomalies, without which society dies”, declared Jean-François Mattéi, deputy and president of the Liberal Democracy group of the “Bouches du Rhône”, in his speech to the National Assembly on 13 December. On the same day the same deputy presented a bill to parliament that accepts a proposal of the “Collective against the fear of handicap”, declaring that “no one may ask for a compensation for his own birth”. The right to reparation might only be granted if “the handicap is the direct consequence of an error”. The bill had been approved by the Social Affairs Commission and might have been voted on already. But the vote has never taken place, obstructed by the deliberate stonewalling of various interventions. In the view of Xavier Mirabel, spokesman of the Collective, “the government, without sufficient arguments and in the minority, has refused the democratic vote. The families that have a handicapped child are disgusted, but we trust in the deputies, the majority of whom wish to combat these forms of discrimination”. The opposition fears “eugenic” repercussions. Jean-François Mattéi asks: “Does a mother have to abort seven normal children to avoid giving birth to a child affected by trisome 21?”. In turn, Msgr. André Vingt-Trois, archbishop of Tours and president of the Episcopal Commission for the family has observed that the sentence of the Supreme Court of Appeal concerning the compensation due to a trisomic child “throws discredit on all those who have accepted” handicapped children. “I think with sorrow – said the archbishop – of all those families who have accepted a trisomic child, to whom they have given their love and from whom they have received no less love in return”. According to Archbishop Vingt-Trois, “the Court of Appeal applies a law that reveals the illusion of our society to have a world without handicaps. The certainty that the human person is always greater than his weaknesses and handicaps did honour to our society. But it would cast shame on it to foster the illusion of being able to eliminate handicapped persons”. Msgr. Vingt-Trois further pointed out the paradox in which many health workers now find themselves: they who “dedicate so much care to helping the sick are now becoming the scapegoats for all the disabilities of human existence”. The Supreme Court of Appeal recently granted to Lionel, a trisomic child born in 1995, compensation for the “prejudice” caused to him by having been born, thus confirming the Perruche sentence of 17 November 2000. Meanwhile, in Parliament the examination of Jean-François Mattei’s bill has been deferred until January.