"The Brussels Court of Appeal ruled on 21st September this year that the child, represented by his parents, could claim damages from physicians for the injury of being born disabled. 'Certainly, the misdiagnosis did not cause the child's disability, which existed before the error and which could not be remedied,' the Court considered. 'However, the injury which must be compensated is not the disability itself, but the fact of being born with such disabilities.'Based on what he calls the "limited description of the case" Fr John Fleming, SPUC's bioethical consultant and a corresponding member of the Pontifical Academy for Life, has made the following observations:
"For the Court, the child would have had 'right' to an abortion if the disability had been correctly diagnosed. Indeed, by making 'therapeutic abortion' part of Belgian law, 'the legislator must have intended to allow women to avoid giving birth to children with serious abnormalities, having regard not only to the interests of the mother, but also to those of the unborn child itself.'"
- The court said that by making "therapeutic abortion" part of Belgian law, "the legislator must have intended to allow women to avoid giving birth to children with serious abnormalities, having regard not only to the interests of the mother, but also to those of the unborn child itself." The judges have no idea what legislators intended about the “interests of the unborn child itself”. That is simply an inference. In any case, what they have decided is that the child had the right to be aborted. But if the child is not a “legal person” with the inalienable right to life, then such a child has no rights at all, including the right to be aborted. This simply makes no sense.
- Accepting for the moment that the unborn child has rights, if it is the child with a disability that had both the right to an accurate diagnosis of his condition and with it the right to be aborted, then how could that right be exercised? From the right to something it does not necessarily follow that someone else would know how that person would exercise that right. How would such an unborn child be consulted and be able to give informed consent?
- The child also has the right to life. Who can arbitrate between these two rights? The parents? If so, on what objective grounds could they make such a decision?
- No parent has the moral right to kill their own child even when they consider it might be in the child’s best interests.
- If the child has a right to be aborted, it then follows that the doctor has a duty to abort. But what of the right of the doctor to conscientious objection. Even referring to another doctor would be sinful material cooperation in evil which might well be offensive to the conscientious doctor’s conscience.
- Are the physicians able to be sued for negligence for misdiagnosing? But who says it is negligence rather than a mistake? And in this case the so-called “negligence” caused no harm because the child lived.
- Is the whole thing about a cynical grab for money by his parents? Or … does this sort of legal action come about because the State provides insufficient support for parents to properly care for their child and this seems to be one way out of the burdens they are experiencing and with which they may be having great difficulty in coping?
- Such a judgement undermines the duty of care parents owe their child. It signals to the child we would have killed you if we had the ‘legal’ chance to do so.
"This smacks clearly of the terrifying acts which took place in Germany in the 1940's, using the same sort of confusing pseudonyms used then. 'Best interests' for disabled people equals death."
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