Down's syndrome children have right never to have been born, court rules

The highest French appeal court decided yesterday that children suffering from Down's syndrome have a legal right never to have been born.

The highest French appeal court decided yesterday that children suffering from Down's syndrome have a legal right never to have been born.

In a judgment confirming a previous, and hotly disputed, ruling in a similar case, the judges said that a doctor had negligently failed to warn an expectant mother that pre-natal scans showed that her baby had Down's symptoms. The baby – who was named only as Lionel – was born in 1995 without his mother having been given the option to have an abortion.

The Cour de Cassation decided that the doctor was 100 per cent liable for the cost of the specialised care needed for the child. The amount of compensation will be announced later. The ruling – like a similar decision by the same court last year involving a child born severely disabled after his mother caught German measles during her pregnancy – was vociferously disputed by anti-abortionistsand organisations for the disabled.

Xavier Mirabel, of the Collective against Handiphobia, said: "Certain judges still believe that it is better to be dead than to be handicapped." He said this amounted to a policy of state eugenics (controlled breeding) and should be reversed by legislation or a change in the constitution.

The bishop of Tours, André Vingt-Trois, the president of the French Catholic church family committee, said that the ruling was an insult to all families who cherished disabled children. He said: "I think with great sadness of all families who have welcomed Down's children, who have showered them with love and received great love in return. This ruling amounts to a declaration that such love was worthless."

Lawyers representing Lionel's family – and other families bringing similar cases – argue that it is not a moral question but a practical one. Suing doctors for damages was the only way to get sufficient funds to make sure that a disabled child lived comfortably.

In November 2000, the Cour de Cassation ruled that Nicolas Perruche – born severely disabled – should receive damages from his mother's doctor who had failed to warn her of the dangers of German measles during pregnancy.

The ruling, confirmed in July this year, caused consternation among support groups for the disabled, which argued that it would confirm a view widespread in society that disabled people were worthless and a disabled life was not worth living.

Another court was yesterday hearing a case brought by the Collective against Handiphobia, complaining that the original decision in the Perruche case amounted to a dysfunction of the justice system.