According to a Supreme Court judgment in Iowa, United States, on 2 June, the parents of a “severely disabled” child can sue doctors for failing to detect the disability during pregnancy.
The case in question involves a little boy, born in 2010, who is suffering from cerebral paralysis, intellectual deficiency and several other disabilities requiring extensive medical care. During the pregnancy, the doctor claimed that “everything was fine” following an ultrasound scan at 22 weeks based on the opinion of the first radiologist and disregarding the warnings of a colleague. The parents believe that, had they realised their child’s condition, they would have opted for an abortion. They started legal proceedings in 2013 against the medical team involved, demanding damages for past, present and future medical care, their “moral suffering” and loss of income for the mother who has not returned to work since the birth. Following an initial rejection, the decision on 2 June 2016 has ordered an enquiry to establish whether the medical team is guilty of negligence.
The judge held that: “These parents have been deprived of the right to make an informed choice (…) It is not the role of the court to guess what might have happened had the diagnosis been made. “Parents of children with disabilities may find their lives enriched by the challenges and joys they confront daily. But under our tort law, financial compensation should be paid by the negligent physician if liability is proven”. Lawyers representing the medical team have pointed out that granting such claims “would stigmatise the community of disabled people, encourage abortions, increase the cost of prenatal care and lead to fraudulent allegations”. However, the judge replied that these concerns did not warrant closing the doors of the courtroom to parents “suffering medical negligence”.
Finally, defence lawyers pointed out that the decision taken on 2 June concerned “severely disabled” children without the court defining the term. “And what if the test indicated that the child would be born blind? Or without a hand? Would this warrant sufficient grounds?”they enquired. These questions will probably be debated during the next hearing.
Note from Gènéthique: A similar trial was held in France in April. The Limoges administrative court found the CHU Limoges (University Medical Centre) guilty of wrongful diagnosis leading to the birth of a baby girl with Down syndrome.
- Down syndrome: Parents unable to have an abortion – CH Limoges found guilty
- Is the life of a Down syndrome child a quantifiable prejudice for the parents?
- How can we prevent children who are born with a disability from being stigmatised with the term “prejudice” by their own family?