The anti-Perruche law threatened by unconstitutionality


The law of 4th March 2002 or anti-Perruche law which poses the principle according which “no one can take advantage from a prejudice for the sole fact of his birth” is subject to a “priority issue of constitutionality” (PQC). From 1st March 2010, this procedure authorises the citizens to “seize the constitutional Council to check the conformity of a law to the rights and freedoms guaranteed by the Constitution”. Among the “complainants”, the mother of a myopathic child born in 1995. Coming from a family in which there are several cases of pathologies, she addressed to the laboratory of Cochin Hospital which diagnosed she was not carrier of the disease. At the birth of her child, she took proceedings to receive "compensation" for her "prejudice". Today, Me Arnaud Lyon-Caen, her lawyer, opposes to the provision of the law “stating that the parents only have right to partial compensation for their prejudice when erroneous information deprived them of the possibility to abort a disabled child”. According to him, the “anti-Perruche procedure […] is against the principle of integral compensation reminded by the constitutional Council.”

 

Application of Perruche judgement 
 
Moreover, on 7th April 2010, the administrative tribunal of Nantes condemned the University Hospital Centre of Nantes to pay a €51,000 fine because it has not detected the disability of child with Down syndrome before the birth. Also the hospital was obliged to “pay a €60 benefit per night passed by their handicap child at the family home from the day of his birth and all along his life”, as well as an amount of around €106,000 to the Caisse des dépôts et consignations (Bank for Official Deposits) which manages the national pension funds of the local government agents for the reason that the mother “had to take an early retirement to take care of her child”.

 

Worries for physicians
 
Questioning the law is source of worries for physicians. For Pr Jacques Lansac, from the French National College of Gynaecologists and Obstetricians (CNGOF), “physicians can make mistakes” but “we cannot hold everything against them!” “We do our best so that pregnancy and delivery are safe, but we do not make the child”, he notes before saying that some of his colleagues are unhappy to have to “shaken up among all these children. We are not here to kill all disabled people!” For him, the law of 2002 is useful for physicians. The problem is on the level of the “individual responsibility. We have to know to take risks in life and, even if advances have been performed, we are not sure at 100%” to have the child dreamt of.