- The Washington Times - Monday, December 17, 2001

PARIS The first thing doctors asked Willemijn Forest, after she gave birth last year to a boy diagnosed with Down syndrome, was whether she wanted to keep her child.
"After the delivery, they took him away immediately, assuming I did not want to see him anymore," said the Dutch woman who lives in Marseilles, France's second-largest city. "I said, 'Of course I want to keep him.' I was so appalled by their attitude."
These days, Mrs. Forest, like many other parents here who have children diagnosed with mental disabilities, is no longer shocked.
Last month France's highest appeals court ruled that children with Down syndrome have a legal right never to have been born and could sue doctors that attended the pregnancy. For parents such as Mrs. Forest, the ruling demonstrates a view which she says is widespread in French society that a disabled life is not worth living.
The judgment, which confirmed a previous ruling in a similar case, has caused a furor in France, sparking a national debate on a host of ethical issues.
In their Nov. 28 ruling, three judges said that a doctor had negligently failed to warn an expectant mother that prenatal scans showed that her baby had the symptoms of Down syndrome. The baby, who was identified only as Lionel, was born in 1995. His mother argued that she would have had an abortion if she had been given a correct prenatal diagnosis.
Although most in France agree that the parents should receive financial aid for Lionel's specialized care, many are offended by the nature of the mother's grievance: That her son had been allowed to be born.
The judges in Lionel's case decided that the doctor was 100 percent liable for the cost of the care needed for the child, because the diagnostic error meant that the mother was not given the chance to abort. The court already had awarded damages of about $100,000, five years earlier. The ruling three weeks ago ordered the sum to be substantially increased. The exact amount is to be announced at the end of January.
Parents of mentally disabled children who gathered outside the courthouse to hear the verdict said they were outraged by the ruling.
"Certain judges still believe that it is better to be dead than to be handicapped," said Dr. Xavier Mirabel, spokesman for the Collective Against Handiphobia, a group that fights for rights for the disabled.
Dr. Mirabel said the most worrying aspect is that the ruling confirmed a similar decision by the same court last year. In November 2000, the court ruled that Nicolas Perruche born severely disabled should receive damages from his mother's doctor, who had failed to warn her of the dangers of rubella (also called German measles) during pregnancy. That case immediately caused widespread consternation, but many thought the ruling was an exception.
Dr. Mirabel's Collective Against Handiphobia has since brought its own case, charging that the Perruche case amounted to a dysfunction of the justice system.
Though 54 percent of the French consider themselves Catholic, a nationwide poll last year by Sofres, a leading independent polling agency, showed most respondents viewed abortion as justifiable. Legal abortion was introduced in 1975, with termination now allowed up to 12 weeks into the pregnancy and later, if there is a grave risk to the mother's health or if the fetus is diagnosed as having a condition such as Down syndrome.
Roger Bessis, president of the French College of Echography (ultrasound scanning), said that national statistics, due out shortly, will show that France carries out fewer abortions when genetic abnormalities are detected.
Dr. Bessis said this is because in France, unlike in other countries, there is no strict time limit for abortions.
Dr. Bessis said that in Paris last year, 90 percent of prenatal genetic abnormalities were detected. In those cases, 8 percent of the mothers decided against abortion.
Dr. Mirabel of the Collective Against Handiphobia said he is concerned that the attention to the recent court cases has eclipsed other, more pressing issues.
In northern France, he said, 85 percent of parents with mentally handicapped children are sending them to specialized schools in Belgium, because the French system cannot accommodate them.
The cases also have alarmed doctors, who fear a growing number of lawsuits.
Dr. Bessis said many specialists already have stopped doing prenatal scans, and some are calling for a nationwide strike beginning Jan. 1.
The Roman Catholic Church in France has called the rulings an insult to all families with disabled children.
Archbishop Andre Vingt-Trois of Tours, president of the French episcopate's family committee, said: "I think with great sadness of all families who have welcomed Down syndrome children, who have showered them with love and received great love in return. This ruling amounts to a declaration that such love was worthless."
The French government, which has kept mainly on the sidelines so far, is due to hold a parliamentary debate this week about the ethical and moral issues involved. Some politicians say the court hearings raised the issue of eugenics (controlled breeding), while others maintain that the court awards were made in recognition of a "right to dignity."
The day after the appellate court ruling, Health Minister Bernard Kouchner said the case had left him perplexed and ill at ease.
Stressing the "value of every life," he said that a "handicapped life is not a pitiful one."
But he added: "Nobody should question a doctor's medical responsibilities toward a mother, any harm done to her as a result of medical negligence, or challenge her right to have an abortion."

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