France pitched into fresh controversy over prenatal testing

CATHERINE FIELD reports on controversial legal dangers in prenatal testing.

PARIS - More than a quarter-century after it passed a law legalising abortion, France has been pitched into a fresh controversy about the rights of the foetus.

This debate is not about the foetus' right to life - but rather the right of a handicapped person not to have been born.

The row was ignited by two court rulings on prenatal ultrasound screening. Defenders of the disabled suggest that, because of these rulings, foetuses with a handicap could face eugenic culling. Doctors fear they could be financially ruined if they fail to spot a potential disability during a pregnancy scan. And politicians are struggling with the unanswerable: should people have the right to compensation because they were not aborted?

The row was sparked by a judgment by the Supreme Court in 2000 that awarded damages to a 17-year-old boy, Nicolas Perruche, because doctors had failed to detect that his mother had contracted rubella when she was pregnant. As a result he was born severely mentally disabled.

The ruling was upheld last July, and an initial award of 650,000 francs ($216,500) in damages, plus 1.8 million francs for the cost of care, was boosted to a much higher but undisclosed sum.

Nicolas' mother, Josette, claimed that her son should be compensated for being born. Both courts said she had been "prevented from exercising her choice to terminate her pregnancy to avoid the birth of a child suffering from a handicap". But critics believe this suggests the child would have been better off dead rather than disabled.

The controversy about the so-called Perruche Ruling amplified last November, when the highest court of appeal, the Cour de Cassation, issued a de-facto confirmation. It determined that a boy born with Down's syndrome, identified only as Lionel, was entitled to damages after a gynaecologist had failed to detect the abnormality during his mother's pregnancy.

The child's mother said she too would have had an abortion if she had known he was disabled. She was awarded damages of 750,000 francs and has been given leave to appeal for a higher claim of 4.5 million francs.

An association for handicapped people and their parents, the Collective to Stop Discrimination against the Disabled (CCH), says these judgments can only boost bigotry. "Parents will be attacked and branded irresponsible because they gave birth to a handicapped child," CCH believes.

Obstetricians and ultrasound operators are terrified about the legal consequences of any failure to spot a genetic abnormality in the womb.

Pierre Haehnel, secretary general of the National Order of Doctors, said insurance companies had already invoked a tenfold increase in annual premiums for these specialists and further hikes could be expected. Many doctors would eventually abandon pre-natal screening altogether.

Jerry Sainte-Rose, advocate-general at the Cour de Cassation who had argued unsuccessfully against the Perruche Ruling, warned that no one would win if doctors gave up scans or fretted about their legal exposure. The number of babies born with major handicaps would increase, he said. So would the number of abortions, as doctors would advise a termination in the event of any doubt, just to cover themselves.

The Union of Gynaecologists and Obstetricians (Syngof) has called for an indefinite halt to prenatal scans, except for pregnant women who are already under supervision.

The strike was launched on January 1 and is being observed by a third of France's 36 specialist antenatal screening centres as well as a growing number of individual practitioners, it says.

Syngof has lobbied for a change to the law to overturn the Perruche Ruling and wants changes to procedures in law suits, demanding that an ultrasound specialist be included in any expert testimony.

It wants the Ministry of Health to set down guidelines on what is expected of a prenatal ultrasound and for a pregnant woman to be given a fact-sheet on the diagnostic limitations of these scans.

"This way everyone will know that even in the best hands, ultrasound is unable to detect a significant number of abnormalities, around 30 per cent in fact," said Syngof secretary-general Guy-Marie Cousin.

"But if you turn those figures upside down, it means that you can detect two-thirds of the problems, and that's not bad."

On Thursday, the lower house of Parliament, the National Assembly, adopted a bill to gut the Perruche Ruling and ring-fence doctors' liability. The proposed law, which must be approved by the Senate, will forbid anyone "to pursue damages simply through the fact of having been born", and says failure to detect a disability in the womb can lead to compensation only if it is the result of a "blatant error" on the part of a doctor. Reversing the Perruche Ruling, it would only let the parents, not the child, qualify.

Some experts are dismayed. They say the Perruche Ruling enshrines as a right what is already a common, but rarely discussed, practice - the use of abortion to prevent handicapped children from being born. And, they argue, by compensating the child rather than the parents, the ruling sets an invaluable precedent for helping the severely disabled after their guardians die.

Others warn against rushed legislation that could revive the stigma of abortion or handicaps, yet do nothing to resolve the ethical dilemma about the right to life.

"The outlook of society has changed a lot over the past 25 years," Segolene Royal, junior minister for the family, children and the handicapped, said, in reference to the 1975 abortion law. "In some respects, it has become more tolerant on questions of lifestyle, but it has also become more prescriptive and sets down new taboos to unfairly marginalise people who are different ... We must clarify legislative or regulatory problems, but not hastily."