Why Wrongful Birth Lawsuits Are Wrong
by Michael Arnold Glueck, M.D. and Robert J. Cihak, M.D.
WorldNetDaily; January 10, 2002

[Pro-Life Infonet Note: 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.]

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.