Human life, a damaging event?” “

Can the birth a child be a damaging event, as a result of which the parents have a right to claim compensation? That’s what people are asking in Germany after the sentence of the Federal Supreme Court (Bundesgerichtshof – BGH) in Karlsruhe which on 18 June sentenced a gynaecologist to provide for the maintenance of a child born with serious malformations to its limbs and to the payment of compensation to the child’s mother. According to the court, the physician – a lady – should have informed the parents of the existence of a damage recognizable in the foetus. The court’s sentence declares that “contrary to her own duty, the physician failed to diagnose the malformations during the mother’s pregnancy” and recognizes that the patient, “if she had known of the existence of the grave handicaps in her child”, would have had an abortion. In the judges’ view, the interruption of pregnancy in this case would have been legal: article 218 of the law on abortion says that abortion is non-punishable only if procured within the twelfth week of pregnancy, but exemptions to this deadline have been made in the case of “medical advice”. The law on abortion was amended in 1995, and makes provision for the interruption of pregnancy if the birth risks damaging the woman’s state of psycho-physical health and if the danger to her health cannot be avoided in any other way. The court established that, on the birth of her child, the mother showed signs of serious depression. While invoking the protection of the life of the unborn child, the sentence declares that the mother “cannot be required” to “sacrifice her own existential needs and juridical position in favour of the child”. “A profoundly disappointing ruling detrimental to the safeguard of the life of the unborn child”: that’s the judgement of the German Catholic Church on the case, expressed immediately after the sentence by Cardinal Karl Lehmann, president of the German Bishops’ Conference and bishop of Mainz. “The sentence shows that in our society the selection of persons due to their handicaps is by now a reality. The judgement of the BGH defines in an incomprehensible way the birth of a child with physical malformations as a damaging event”. Lehmann points out that the sentence contradicts “both the Christian concept of the human person and the values upheld in the constitution”; the judicial precedent set by the ruling of the supreme court “make possible the elimination of persons with handicaps and leaves the decision on the life and death of the unborn to the arbitrary judgement of its parents”. “Expressly approving the position of the doctors”, Lehmann points out that “the current legislation has extended in an openly irresponsible way the possibility of aborting in effect right up to the moment of birth. The interruption of pregnancy becomes the logical consequence of the identification of a handicap, in contradiction to any principle of safeguarding human dignity”. Cardinal Joachim Meisner, archbishop of Cologne, for his part, expressed his dissent as follows: “The BGH has confirmed that unborn children with handicaps have no right to exist. With the BGH, our constitution is not in good hands, since it no longer exercises its right to protect the weakest, in other words unborn children and the sick”. Meisner also wonders how “a form of jurisprudence that defines a person as a damaging event, with the result that compensation can be claimed for it”, may be called a “culture of law”. Also critical towards the sentence is the Council of Catholics of the bishopric of Speyer: “In considering as a damaging event the birth of a child with a handicap, the BGH degrades him/her to category B: those whose presence is socially undesired”. In the view of the Evangelic Church, paragraph 218 “needs as a matter of urgency to be tested by the courts. Certain legal provisions, such as medical advice, that eliminate abortion as a penal offence to just before the moment of birth, are intolerable”, declared the Church’s spokesman Thomas Krüger. “However humanly comprehensible are the human tragedy that lies hidden behind the individual cases”, he added, “human life cannot be evaluated as a damaging event”. Equally severe is the judgement of Jörg-Dietrich Hoppe, president of the Order of German physicians: “It is a particularly grave matter that just the provisions on abortion, recently modified to prevent selection, should now be used as a means of eliminating human life”. That is in clear contrast with the professional ethics of physicians and with the values of a human society. The aim of medical activity – he stressed – is to cure, alleviate or prevent disease, and not to kill the sick or persons with handicaps”. Mercede Succa