Compensation for Down syndrome: An assault against fraternity
The Court of Appeals has recently ratified the compensation for the financial burden of parents due to the Down syndrome of their child which a doctor, considered to be at fault, failed to detect.
A case of compensation of parents for the pre-natal non-detection of Down syndrome has just reached its epilogue at the Court of Appeals. The high magistrates confirmed the inclusion in the compensation due to the parents by the practitioner recognised to be at fault, of the consideration of the harm associated with the loss of professional income caused by their presence in support of their child. Together with the sum already awarded by the court for the “moral harm”, the total compensation of the parents concerned amounts to almost 300,000 euros. Their child was born on 25th June 2009 without prior detection of Down syndrome.
Compensation for loss of profit
Since 1975, in such cases the law authorises an abortion at any stage of the pregnancy. The ultra sonographer who failed to detect the risk of Down syndrome was taken to court. On 15th October 2025, the Court of Appeals gave a ruling following an appeal against a judgement by the Appeals Court of Orléans given on 9th April 2024. The reason for the dispute put forward by the doctor: in addition to the sums allocated for the “moral harm”, the court of appeal awarded to the mother and father of the child respectively 31,784.80 € and 87,740.80 € in reparation for their “patrimonial loss”. It corresponds to the evaluation of the loss in professional revenue resulting directly from the fact that they had to provide extra care for their child. The mother claimed having had to opt for a long period of parental leave followed by part-time employment on a reduced salary, and the father also claimed a “serious fall in income” from 2009, the year of birth of the child and until 2015, also associated with the existence of the child.
The broadening of the notion of harm
In principle, as recalled by the Court of Appeals, the law states “that when the responsibility of medical staff or health establishments is committed with respect to the parents of a child born with a handicap not detected during pregnancy following a recognised offence, the harm for which the parents may apply for compensation cannot include the resultant particular burden, throughout the life of the child, due to such handicap.” The compensation for such burden indeed is a matter of national solidarity. The Court of Appeals nevertheless chose to caution against the broadening of compensation of parents for the harm caused by a birth which could have been avoided, by refusing to include the professional loss in revenue with the harm resulting from the life of the child.
A repeat of the Perruche case
This case is a repeat of the controversy around the Perruche precedent, the ruling by the Court of Appeals which caused an outrage in 2000, because it asserted that the young man born with a handicap suffered the harm of being born, i.e. for being alive instead of having “had the benefit” of an abortion. His parents had in fact sued the doctor, in his name, for failing to diagnose the handicap. Under the protests of a collective of parents of children suffering from handicaps, a law in 2002 fortunately invalidated the controversial precedent by ruling that “nobody can claim to suffer harm on the strength of merely being born.”
The siblings involved
However, it should be noted, that in this new case, the parents initiated a lawsuit in their own name but also in the name of their other minor children, who they consider to have also been harmed by the birth of their handicapped young brother. An apparently unquestionable logic: surely the living conditions of the children are dependent on the living conditions of their parents? The understandable aim of the parents is to obtain maximum compensation. Medical staff have already experienced the fact, people in distress are often tempted to seek to attribute blame. But at what “ethical” cost? In this case, at the cost of fraternity.
A eugenist logic
By demanding that a doctor should compensate (indirectly) brothers and sisters for failing to enable the pre-natal elimination – by their parents – of their handicapped younger brother, the magistrates quite rightly pointed out the eugenist logic which prevails in the monitoring of pregnancies. Implacable logic: a handicapped child is considered as a cost, its birth as a harm and the failure to detect the handicap as a “recognised offence”. At a time when the battle for inclusion and against discrimination is resulting in the emergence of claims by an “anti-validist” movement, the highest legal authority validating a lawsuit which – in the name of children already born in good health – compensates their parents for not having managed to prevent, through abortion, the birth of a brother (or sister) born handicapped… Did you say fraternity?
The value of a life
Moreover, according to the view which we have of human life, it is possible to consider it either as a wealth, or as a cost. A new birth (even of a healthy child) is liable to impoverish a family by partially acting as an obstacle to the work of the parents. In truth, any expansion of the family impoverishes every child already born by reducing its share of inheritance. But especially, if one had to compensate the child suffering from Down syndrome for all the tenderness which it spreads around, including to its brothers and sisters, what would be the rate for such love? The popular success of the film Un p’tit truc en plus (A Little Something Extra) 2024, gives some hope of recognition that those suffering from Down syndrome (and so many others) contribute enormously, precisely by their mere existence, when we give them such an opportunity. Fraternity has no price.
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