The Necessary Implications of Wrongful Life Claims: Lessons from France

On November 17, 2000, the Assemblee Pleniere of the Cour de Cassation, the highest civil court in France, allowed Nicolas Perruche, a 17 year old suffering from congenital rubella syndrome, to recover damages against the doctor and the laboratory who had negligently advised his mother that she was not infected with rubella while she was pregnant with Nicolas. Suspecting that she was infected with rubella, Nicolas’s mother had told her doctor that she would terminate her pregnancy if the test proved positive. Negligently reassured twice that she was not infected, she continued with the pregnancy and Nicolas was born suffering the effects of the rubella which included severe developmental delay, deafness, partial blindness, and heart problems. The case falls under the rubric of ‘wrongful life’ as Nicolas could not have been born healthy, rather, he was claiming that without the negligence, he would not have been born at all and thus would not have experienced the suffering produced by his exposure to rubella. The decision caused an outcry in France and was widely condemned by the media, academics, groups representing the disabled, doctors and politicians. There was pressure on the government to request an opinion on the matter from the National Bioethics Advisory Committee (CCNE), which it eventually did. The resulting opinion condemned the decision in Perruche. Nevertheless, in three similar cases in July 2001, the Cour de Cassation confirmed its earlier jurisprudence (although recovery was denied on the ground that the women involved would not have been able to terminate their pregnancies had they been correctly informed of the results of their ultrasound examinations due to the operation of the abortion law). In November 2001 Perruche was re-affirmed by the Cour de Cassation. Despite this reinforcement of the position of the Cour de Cassation, there was some resistance by the lower courts. After much debate in the Assemblee Nationale and the Senat during 2001 and the early part of 2002, Perruche was finally overturned by a law dated March 4, 2002, which denies legal redress to one “who is harmed solely by being born”. In this article I proceed on the basis that the arguments around causation, harm and damages are masks for the real questions which surround Perruche. Many of the arguments against Perruche are based on what commentators view as the ‘necessary implications’ of the decision, which inspired the CCNE report and the new law. I examine these ‘implications’ as a series of questions, to determine whether these implications really are inherent in the court’s holding: -does the acceptance of wrongful life claims recognise a right not to be born? -if there is a right not to be born, is this inconsistent with the right to life? -if there is a right not to be born, does this necessarily imply a right to prenatal euthanasia? -does allowing wrongful life claims move us down a slippery slope towards the legalisation of euthanasia? -does allowing wrongful life claims foster a discriminatory society?