1. The right not to be born and the wrongful life action Comparative analysis between Civil and Common Law systems -The french Perruche case -Latest Italian Cassation about this issue -Mckay v. Essex

2. To be or not to be?

3. General definitions -right not to be born -wrongful pregnancy or conception -wrongful birth -wrongful life  Comparative approach  Transidiciplinary method

4. The Perruche Case -In Novemeber 2000 the French Court of Cassation held a doctor liable for having failed in detecting a serious congenital deformation of a fetus. -The Court ordered him to compensate not only the mother for hurting her right to abortion, but also the child Nicolas for being born in those terrible conditions, for having had such a miserable life.

5. The facts and medical aspects of the Perruche case The doctor failed the examinations concerning rubella on Mrs. Perruche, the boy Nicolas was born with severe disabilities that resulted from congenital rubella contracted during his intrauterine life. Rubella can cause congenital rubella syndrome in the newborn, it compromises cardiac, cerebral, ophthalmic and auditory defects. The infections usually happens on the first semester of pregnancy. Many mothers who contract rubella within the first critical trimester either have a miscarriage or a still born baby. If the baby survives the infection, it can be born with severe heart disorders, blindness, deafness and other organ disorders. This is what happened to Nicolas.

6. The court decision At the trial the Court found the laboratory and the doctors failing to provide the woman with the attendive and diligent care which she had the right to expect. The doctor didn’t fulfill his duty to provide information and consueling so as to allow his patient to make an informed decision. Mrs Perruche in fact informed the doctor that she would have asked an abortion if she was suffering rubella. The negligence of the laboratory and doctors had deprived her right to legally terminate the pregnancy. What is completely new about this judgement is that the court recognised a compensation to the child as well, not just to the mother. The cassation allowed the compensation to Nicolas for being born in such a bad condition.

7. The harming of the French Medical Liability rules (legal point of view) In order to determinate a medical liability in the french legal system three requires are necessary: -The doctor must have committed a fault ( negligence ) -The plaintiff must have suffered damages -There must be a casual link between the doctor’s fault and the plaintiff damages. In the Perruche Case is missing the third condition, the negligence of the doctor didn’t cause the harm: the harm was caused to rubella contracted by the mother during the pregnancy. It was impossible to establish that the doctor’s negligence caused the child’s disability, because disability was due to rubella, not to the failure of the doctor in detecting the presence of the birth defect. The Perruche judgement, on the legal poit of view, harmed the rules of french medical Liability. The only event that the negligence of the doctor caused was the child’s birth..Can the birth of a child with disabilities be considered an harm or an injury?

8. Ethical considerations Considering the birth of a disabled child as an harm is not acceptable on the ethical point of view: allowing it would lead to a certain kind of Eugenics. The French legal system already contains provisions that might be seen as the begging of eugenics. For istance it is allowed to a woman to terminate her pregnancy if she learns that she will give birth to a child with sever, incurable illness. These provisions must be balanced with measures that provide care for people actually suffering from these diseases. Life cannot be considered as an injury, even if it consists in a disabled life; otherwise disabled people could be discriminated.

9. Legal criticisms of the Perruche jurisprudence 1. It would have seriously increased the malpractice suits against doctors. 2. It would have encouraged children with disabilities to sue their mothers for not terminating their pregnancy 3. It would have considerably increased the professional liability insurance premiums.

10. The court motivation In this judgement the motivation is based on a weak argument. The judges didn’t explicitly declare that the birth of a disabled child can be considered as an harm, but this is the inevitable consequence of their way of thinking. The judges, out of a sense of equity, made a decision to ensure that the child received a compensation. Their idea is that the Perruche wouldn’t have asked this compensation if they had had an adeguate support for their child’s care. They emphatise the inadequacy of French measures to provide funding and care to those suffering from permanent and serious disabilities. If State had done its duty in assisting those families the court would have not oversteped thier bounds using liability to provide such assistance. The Perruche jurisprudence despite of the multiple criticisms mantained its course untill the legislature intervented: On the March of 2002 the Parliament approved the Koucher act or “ anti perruche act ”. The main principle is that no one can avail themselves of an harm from the fact of the birth alone. Another law passed in 2005 provides financial support to families in the event of certain disabilities of the childen, but it covers only the basic needs.

11. Italian Court of Cassation United sections sent.n.25767/2015 The United sections of the Court of cassation were asked to pronounce about the legitimacy of the unborn child in asking the compensation to the physicians for their wrongful life. According to this judgement the child has the whole legitimacy of acting against the doctor for his negligence during the pregnancy, even if the child was not born yet. The main problem concerns the kind of request involved: not being born cannot be considered as a good of life and the legal system cannot protect from being born. The State in fact protects the goods of life not the goods of not life. In the motivation there are several references to other countries jurisprudence about this issue, such as Germany, U.S. and France.

12. Wrongful life action in Common Law Is it possible to allow an action whose main porpourse is to obtain a compensation for being born from a doctor or from the mother? Zepeta v. Zepeta, 1963 Illinois: an unwealthly child sued his father fro allowing him to be born illigitimate, the plaitiff asked for the damages for the deprivation of his right to be a legitimate child.the legitimacy of this action was denied. Gradin v.Gradin 1980 Michigan: the child sued his own mother for contuining to take drugs during pregnancy and not realising she was already seven weeks pregnant.

13. McKay v. Essex Area Health Authority 1982 In this case the court of Appeal considered claims arising from the birth of a child born as a result of an infection of rubella suffered by the mother during the pregnancy. If there hadn’t been negligence in the defendant managing the pregnancy the mother would have had an abortion and the child would not have suffered for having such a painful life. The court objects the wrongful life claims on three grounds:

14. The sanctity of human life The main point of this argument consists into the fact that the legal system support life and existence: there are exception to this principle such as the abortion Act of 1967. Except for specific situation such as rape, it would be contrary to the public policy to recognise such a claim. Life, even with serious disabilities, can never be an injury, it is always valuable. The court about this argument has a very strict and rigid prospective, because in reality there might even be cases where this idea cannot justify the refuse of the claims of the plaintiff.

15. Nature of doctor duty Tort law of medical liability is concerned with defendants who make the plaintiffs worse, not with those who merely make them exist. The medical duty consists in preserving life not in preserving not existance, there is no duty for the doctor to provide the service of not living. Paradoxically the doctor could be sued for respecting his duty of preserving human life.

16. Identify the quantity of the damages In McKay v. Essex the court couldn’t quantify the damages and was also unable to identify compensatable damages. How can a court begin to evaluate non-existance? The same problem was faced by american courts for the wrongful life actions, many american judgements are specifically mentioned in Mckay’s motivation. For istance in Gleitman v. Cosgrave (1967) the New Jersey court rejected the claim by a child born disabled on the grounds that the action didn’t give rise to damages cognisable in law.

17. Responsibility of the mother to her fetus The Law commission considered this issue and at the end decided that an action of a child against its own mother resulting from her negligence during the pregnancy should not be allowed. In fact a claim of this type would compromise the parent-child relationship and might even be used as a dangerous weapon in matrimonial disputes. The English Legilation, the Congenital Disabilities Civil Liability act of 1976, excludes claims by a child against its mother except for injuries substained during trafic accidents. In recent years this issue might be differently solved, the fetus has emerged as a patient in its own right specially in cases concerning the use of drugs,alcool or tobacco during pregnancy.

18. Is the wrongful life action really inadmissable? According to some american jurisprudence and to certain scholars, this whole situation could be seen with a different point of view: the injury has to been seen not in the birth alone but with the composite concept of the birth of the plaintiff with a defect. The child has been deprived of the fundamental right of being born as a whole functional human being. The point in the end does not consist in protecting the fact of not being, but the fact of being born with severe diseases. Not recognising the pain of the child would be inacceptible from this point of view.

19. Conclusion The doubtful aspect of the wrongful life action lies in the fact that the court should explicitely say to the plaintiff “it would be better if you had not been born”.This judgement would seriously compromise the value of human life which the courts are more usually called to endorse. The disabled should be helped and sometimes compensated for the suffering which their lifes may entail, but at the same time none can legally judge if a life is worth to be lived or not.