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Court awards damages to disabled child for having been born

Tony Sheldon, Utrecht

For the first time in the Netherlands, a court has awarded damages to a severely disabled girl for the fact that she was borna so called "wrongful life" judgment.

The case of 9 year old Kelly Molenaar has led MPs to call for the Netherlands to follow France and ban damage claims for wrongful life. Doctors fear the judgment could lead to a sharp increase in defensive prenatal testing.

A court in The Hague heard how Kelly's parents had informed a midwife at the Leiden University Medical Centre that a relative of the father was disabled because of a chromosomal abnormality. But the midwife reassured them and did not carry out further prenatal diagnostic tests or refer the case to a clinical geneticist.

The abnormality was therefore not detected early enough and Kelly was born with multiple mental and physical disabilities. She cannot walk, talk, or properly recognise her parents; has deformed feet; is believed to be in constant pain; and has had several heart operations. By the age of 21/2 she had been admitted to hospital nine times due to "inconsolable crying."

The court accepted that damage to Kelly and her parents resulted from the midwife's error. A referral to a clinical geneticist would have resulted in an abortion and Kelly would not have been born. Damages against the hospital amounting to the cost of Kelly's care and upbringing until her 21st birthday were awarded to her parents.

But the court went further, ruling that Kelly herself was liable to damages. The court judged that the damage experienced by Kelly was in a legal sense a predictable consequence of the midwife's mistake. Therefore the court accepted the possibility of a claim for wrongful life. A further court sitting must now set the level of damages. The hospital's lawyers are considering an appeal to the Supreme Court to quash the judgment.

MPs are urging the ministries of health and justice to respond to the decision. Democrat 66 MP Boris Dittrich has called for Dutch law to be changed to prohibit wrongful life claims. This happened in France in 2002 after a similar caseknown as the Perruche casein which a disabled child was given damages for having been born (BMJ 2001;323:1384)[Free Full Text].

Joseph Hubben, professor of health law at the Free University of Amsterdam, said: "To recognise a disabled life as a source of financial damages gives the wrong signal to society. Disabled people should be fellow citizens not someone who should have been aborted." He also argued that the decision would increase pressure for more prenatal diagnostic testing not just from parents but also from doctors.