Wrongful life? The strange case of Nicholas Perruche

Human Life Review, Winter 2002 by Lysaught, M Therese

The law tells stories. So argues Catholic legal scholar Mary Ann Glendon in her short but fascinating book, Abortion and Divorce in Western Law. Glendon draws on anthropologist Clifford Geertz's claim that law is a "culture system"-it "tells stories about the culture that helped to shape it and which in turn it shapes: stories about who we are, where we came from, and where we are going." Law's stories, Geertz and Glendon argue, cannot but constitute who we are. Its language and concepts become part of our ordinary language and influence how we perceive reality.

At times, though, a law attempts to advance a story that seems radically out of step with what we understand to be true, with who we believe we are or who we wish to become. Such cases illustrate law's constitutive power. A poignant example that has been wending its way through the French courts is the case of eighteen-year-old Nicholas Penuche, who recently won a claim for "wrongful life."

Nicholas was born in January 1983. Four weeks into his gestation, his fouryear-old sister contracted German measles. His mother, aware that German measles can cause severe congenital handicaps, told her physician that if she tested positive for the disease she wanted an abortion rather than risk giving birth to a severely handicapped child. Mrs. Penuche underwent two blood tests, two weeks apart. Laboratory error gave contradictory results. Instead of pursuing the matter further, her physician advised her that she could "safely continue her pregnancy."

Nicholas's profound handicaps became evident soon after his birth. He cannot hear, cannot speak, and is mostly blind. His heart is weak. He moves only when carried or put into a wheelchair. Mrs. Penuche suffered a mental breakdown when Nicholas was two, requiring psychiatric care. His parents subsequently divorced.

Today, Nicholas lives in a government institution and spends alternate weekends with his mother and father. But his parents were concerned that after the age of twenty, he would probably have to leave the institution and require permanent private care. The family first went to court in 1988. Arguing that the error of the laboratory and the physician had brought suffering to the family, the Perruches were awarded approximately $13,000 in damages.

Had the case ended here, it would be have been novel enough, presenting the first appearance in French jurisprudence of a concept indigenous to the U.S. legal landscape, namely, "wrongful birth." "Wrongful birth" suits claim that the negligence of health-care providers (for example, botching sterilizations, failing to inform about a prenatal test, or misdiagnosing a fetus's handicap) prevent the mother from exercising her right of autonomy and thus to abortion. Wrongful birth claims have been advanced when the "birth" resulted in children both with and without disabilities.

Wrongful birth cases differ from traditional malpractice suits in two ways. Traditional malpractice suits (which in these situations might be brought under "wrongful conception" or "wrongful pregnancy") describe the "damage" as a medical or physical harm to the mother. This would not include the existence of a child one would rather not have. Consequently, malpractice compensation is generally limited to recovery for damages associated with pregnancy itself (loss of wages, costs of pregnancy and delivery, etc.) as well as emotional duress. In wrongful birth cases, the damage lies not with the pregnancy itself-Mrs. Penuche, for example, was not opposed to being pregnant nor to giving birth to a second child. The damage lies rather in the burden that this particular child imposes on the life of the parents and family. Wrongful birth suits seek additional compensation for wages lost because of the care required by special-needs children, and for the medical, educational, and emotional costs associated with the child's disability. Typically, these costs are only compensated until the child reaches the age of majority.

But Nicholas's case is not solely one of wrongful birth. In addition to arguing for damages on their own behalf, the Perruches sued the laboratory and the physician on Nicholas's behalf, arguing that Nicholas himself had been harmed by their errors. On four occasions, Nicholas was awarded damages, but each time the verdicts were reversed on appeal. Last July, the Cour de Cassation, the French equivalent of the Supreme Court, upheld a 1991 lower court ruling that awarded Nicholas damages. The court argued that because the errors of the physician and the laboratory "had prevented Mrs. Perruche from exercising her choice to end the pregnancy in order to avoid the birth of a handicapped child, the latter can ask for compensation for damages resulting from his handicap." The Perruches were awarded about $68,000 with a further $250,000 to cover the cost of Nicholas's life-time care.

With this decision, the French courts imported the additional U.S. concept of "wrongful life." "Wrongful life" suits do not claim that the physician's negligence caused the impairment (as would a malpractice case). Rather, "wrongful life" suits argue that the health-care provider's error is responsible for the plaintiff having been born and consequently experiencing the suffering and incurring the expense caused by the impairment. The impairment causes the harm. The "wrong" is attributed to the birth itself, implying that in his being born the plaintiff's rights were violated. Nicholas, the wrongful life claim implies, had a right to be terminated before birth.