I thought American courts were weird, but the BBC reports that France’s highest appeals court has upheld the principle that families of handicapped children can sue doctors for failing to detect birth defects in utero and giving the mother the opportunity to have an abortion.
Last year a severely retarded boy in France was awarded damages on the grounds that had it not been for a doctor’s error, his mother would have chosen to abort him, so, in effect, the doctor’s negligence is to blame from the boy’s birth defects.
This is an insane legal principle that would seem to lead to even more bizarre outcomes.
For example, if a doctor can be said to have harmed retarded child by failing to detect his birth defect so that his mother might have aborted him, it’s not much of a leap to suing on behalf of a retarded child whose mother never bothered to have her fetus screened for birth defects.
Or what about a woman who knows that her child will be born retarded but chooses to carry him to term anyway? The sort of logic used in this case strongly implies that the woman is committing a tort against her child.
Think about this applied to genetic diseases. Some people in my family suffer from Huntington’s disease (quick summary — if you’ve got it, you’ll die in a very unpleasant way by your mid-40s). Many people whose parents are Huntington carriers never get tested for the disease; they don’t want to know. If such a person has a baby who is born with the disease, is that negligence?
What about parents who choose to have children even though they will have a high risk of passing on sickle cell anemia or Tay-Sachs?
There simply is no right not to be born and trying to invent such a right leads quickly to a number of absurdities.