A decision has just been rendered by the Administrative Court of Appeal in Bordeaux, France on the delicate issue of paying compensation for the distress caused by the birth of a child whose disability was not detected during pregnancy due to a medical error.

Following in vitro fertilization, Mr. and Mrs. R gave birth to 3 male triplets in 1999. Two of the triplets who are severely disabled were diagnosed with Becker muscular dystrophy in 2005.

Mr. and Mrs. R. filed a claim in their own name and on behalf of the healthy sibling for compensation for damages suffered due to two disabled boys, citing hospital medical errors for not detecting the pathology before birth.

By judgment of 4 December 2018, the Bordeaux Administrative Court of Appeal held that the hospital center that had followed Mrs. R … ‘s pregnancy had committed a serious error which deprived the parents of the possibility of performing a prenatal diagnosis, considering their family history, and therefore a chance to give birth to children whithout a genetic defect, either by giving up the pregnancy, or by benefiting from a prenatal diagnosis with selective interruption of pregnancy.

On December 4, 2018, the Administrative Court of Appeal in Bordeaux ruled that the medical center had committed a serious error during Mrs. R’s pregnancy. The parents were not offered the opportunity to have prenatal diagnosis performed, considering their family antecedents, and therefore were not given the chance to have children without the genetic defect, either by abandoning the pregnancy, or by performing a prenatal diagnosis and a selective abortion.

The Court therefore condemned the hospital to pay Mr. and Mrs. R. 30,200 € each in compensation for personal injury, in addition to 10,000 € to their son F. for moral compensation and the difficult living conditions due to his brothers’ disability.

In so doing, the administrative court broadened the scope of Article L.114-5 paragraph 3 of the Legal Code for society and families, to include the sibling, when it was previously only applicable to the parents.

Although a child with severe disabilities is undeniably a source of hardship and even suffering, not only for his parents but also for the whole family, is it legitimate to broaden the scope of the law?

Since March 4, 2002, the French law known as “anti-Perruche” rightly asserts that compensation for special burdens due to disability is a matter of national solidarity, specifying : “No one can claim an injustice just for the fact of having been born.” However, the law recognizes that the parents of a disabled child have a special right to compensation for “moral damage and disruption in their living conditions“, on behalf of the doctors who didn’t offer them an opportunity to end the pregnancy. But until now, other family members, including siblings, were not included in the compensation rights.

To give a disabled child the painful and brutal message that he should not have been born is already distressful. But to affirm that siblings also have a “right to compensation”, when they were not given a choice whether to accept their sibling or not, constitutes a questionable interpretation that could stigmatize even more disabled people.

The French State Council of State may have to decide whether this judgment rendered on December 4, 2018 should be appealed.