Wrongful Birth?

Charles de Gaulle once remarked that France without greatness isn’t France. Nowadays, we’re wondering whether France without common sense can still lay claim to greatness, or to much of anything else. The wonderment is more than rhetorical. For the nation that once gave the world the “Declaration of the Rights of Man” now adds to its legal system a concept known as “wrongful birth.”

Specifically, a Reuters news story earlier in this new year reported that French obstetricians were “refusing to carry out ultrasound scans on pregnant women after a court found they could be liable should a disabled child be born.” The problem arose because lawyers claiming to represent “a child with the genetic disorder Down’s Syndrome successfully sued doctors because the condition had not been detected using ultrasound, and an abortion carried out.”

No ultrasound examination or other diagnostic test is 100 percent accurate, reliable and perfect, even in retrospect.

The doctors, justifiably fearful of more lawsuits if they don’t diagnose this condition (or others) on a ultrasound examination before the baby is born, are now practicing a novel form of “defensive medicine.” Instead of ordering too many tests and procedures to guard against future legal action, they’re refusing to act at all. Will they thereby open themselves to more lawsuits because of their refusal?

For us, as physicians and as human beings, this shows what happens when courts become independent arbiters of morality, and the manipulative logic of some lawyers takes over. At one level, the case is prima-facie absurd. In effect, the lawyers claimed that the baby wanted to be killed in the womb. Of course, the baby was just born and probably hadn’t been consulted. Just as well. Newborns have more important things to do. Presumably, as is the case in this country, the parents or mother decided to sue. What was their rationale? That they were unwilling to be burdened by an imperfect child? That they’d changed their minds (sorry, not the child we wanted) about parenthood? That they just wanted the cash?

But the issue goes beyond the surface absurdity and ugliness. It strikes at the very notion of the legal protection of life, as it relates to medical practice. In a “normal” malpractice lawsuit, damages awarded to the complaining party would be defined and limited by the harm done. In this case, however, the basic complaint is that, “life itself is a damage.” Or to put it even more bluntly – the existence of some persons constitutes such a damage to other persons that compensation must be paid.

Such cases attract media attention. They have in this country. Several years ago, for example, a disabled young man sued his parents for letting him be born. These cases are reported – often on lists of the year’s wackiest lawsuits – because they conflict so strongly with our everyday experience and common sense. Sure, life has its ups and downs, but the mystery of life and the sense that life is worth living invokes our curiosity and sustains us over time. To declare someone else’s life “not worth living” is, at best, a horrendous usurpation of another’s rights. To enshrine that principle in law is far worse.

We’ve seen it before. The Nazis decreed the lives of any number of groups of human beings – from Jews and Slavs to homosexuals and the retarded – not worthy of existence, let alone protection. Communist butchers did the same with entire social and economic classes. They too had the “law” on their side.

Although initially you might think this a leap, we suggest that the link between the jihadists and the wrongful birth lawyers is a deep one. Both regard the lives of some as an intolerable affront to the lives of others, an affront that goes far beyond this world’s “normal” human struggles. Golda Meir once remarked that Palestinians seemed to hate the Jews more than they loved their children. An ugly comment that most Palestinians and Arabs would no doubt vehemently reject. And yet, the young suicide bombers – their children – keep coming.

So what do we have here? In essence, a continuum – a linkage between a courtroom in civilized France and the deeds of the Nazis, the totalitarians, the jihadists. It may not seem obvious, this connection between “wrongful birth” and mass murder, but it’s there. It’s there when the law (religious as well as secular) perverts itself to the point where not killing becomes a crime.

Michael Arnold Glueck, M.D., of Newport Beach, Calif., writes extensively on medical, legal, disability and mental health reform. Robert J. Cihak, M.D., of Aberdeen, Wash., is the immediate past president of the Association of American Physicians and Surgeons. Both doctors are Harvard trained diagnostic radiologists. Collaborating as The Medicine Men, they write a weekly column for WorldNetDaily as well as numerous articles and editorials for newspapers, newsletters, magazines and journals nationally and internationally.