Business Parakeet
the business Perruche was held as from 1989 in France, in front of the courts, the French Parliament, then the European Court of the Human rights. This business initially relates to the concept of “damage to be born” and the medical responsibility, and the debates which it caused are extended to the questions of handicap, eugenism and avortement.
The business holds its name of Nicolas Perruche, born seriously handicapped, its mother having contracted a diagnosed rubella not and not having been able of this fact of resorting to a Voluntary interruption of pregnancy (IVG).
Preliminary precise details
A pregnant woman which contracts the Rubéole before the 11th week of Aménorrhée has more than 90% of risks to transmit it to the Embryon which it carries. Rubella, when it is contracted by this embryo, involves obligatorily - the risk is thus then of 100% - a extremely serious Handicap physical and mental (auditive lesions (Surdité), eyepieces (going until the Cécité), cardiac and mental), the Syndrome of Gregg.
The voluntary interruption of pregnancy (IVG) is, in France, completely free, without requiring any justification: at the time where the history (1982) starts, when it was carried out before 10 weeks, and 12 weeks since July 2001.
History of the Parakeet family
In 1982, little girl the four year old of the Perruche couple catches rubella, minor illness a priori, but extremely serious for an embryo before 11 weeks of amenorrhoea.Nearly one month later, Mrs Perruche presents the same symptoms as her daughter, characteristic of rubella. Its doctor prescribes a test allowing him to him to be able to decide on an voluntary interruption of pregnancy (IVG) or not, if its embryo would have caught this disease.
Mrs. Perruche indicates to the doctor whom if his child contracted rubella, therefore if it will be confined of an undoubtedly very seriously handicapped child, it will ask a IVG.
The examination of Blood, immediately prescribed, banal examination carried out in laboratory, appears negative with rubella. But another examination, carried out 15 days later by the same laboratory, appears positive.
A control, lawful, is thus carried out on the first taking away, which appears positive.
These results are not contradictory.
Indeed, a person having contracted rubella appears then positive with the tests. In other words, if the two samples are positive, that means simply that the person caught rubella before, and that the analyzes do nothing but reveal traces still present in the blood of this old contamination, therefore without transmission with the possible fetus.
On the contrary, if the sample were negative on May 12th and positive the 27, that means that rubella is quite present and in the course of evolution. The embryo has thus the risk to become a child blind, deaf-mute, cardiac and mentally handicapped.
Doctor affirms with Mrs. Parakeet, then old of 26 years, that it is the first version which is the good one, in other words that its embryo does not have rubella.
The January 14th 1983 is born Nicolas, afflicted with serious central nervous system disorders, bilateral deafness, retinopathy (right eye not seeing and glaucome), and cardiopathy, which had, without dispute no, with the rubella contracted by his/her mother. The latter would have chosen a IVG if it had known that it had rubella before the 10 weeks deadline of amenorrhoea, or a medical Interruption of pregnancy (IMG) if this time had been exceeded. Nicolas would then not have been born.
In July 1989, whereas Nicolas is old of 6 years and half, the Perruche couple assigns at the bottom the doctor, the laboratory and their insurers, in the name of their child.
The stop Parakeet
- Arrêt Parakeet redirects here.
The December 17th 1993, the Court of Appeal of Paris cancelled the judgment partially, while refusing to admit repair for the Nicolas child.
By stop of the March 26th 1996, the first civil court of the Court of appeal pronounced a cassation in the following terms: “Waited until while being thus determined, whereas it was noted that the parents had shown their will, in the event of rubella, to cause a termination of pregnancy and that the made faults had wrongfully induced them in the belief which the mother was immunized, so that these faults were generating damage undergone by the child because of rubella of his mother, the Court of Appeal violated the texts referred to above. ”
The February 5th 1999, the Court of Appeal of Orleans, ruling like court of reference, declares that the damage of Nicolas is not due to the faults of the laboratory and the doctor, but was caused by an intra-uterine rubeolic infection. The parents form a new appeal.
By a stop of the November 17th 2000, the Court of appeal, as a Plenary assembly, breakage and cancels this stop in its entirety, and thus gives reason to the Perruche husbands by declaring “that since the faults made by the doctor and the laboratory in the execution of the contracts formed with Mrs. Perruche had prevented this one from exerting its choice to stop its pregnancy and this in order to avoid the birth of a child reached of a handicap, this last can require the compensation for damage resulting from this handicap and caused by the faults selected. ” It was the first time that jurisprudence sanctioned in so clear terms the right for the handicapped newborn to be compensated for its own damage (the fact that the parents are compensated was not causes some in this business and is not disputed any more for a long time).
Continuations of the stop Parakeet
This stop caused an outcry in the public opinion and of the very critical comments sometimes in the legal doctrines. It was reproached the court of appeal for having regarded as a damage the only fact of being born: indeed, the critics, if the laboratory had not made this fault, Nicolas Perruche said would not have been born, since there would have been IVG. The only consequence of the fault of the laboratory is thus that Nicolas Perruche came in the world, since the lesions which it underwent could not be avoided and were not in any event the consequences of the fault of the medical laboratory, which made only one error of diagnosis.
Enough paradoxically, in fact defense associations of the handicapped ones carried out the sling, estimating that this stop affirmed that the life of handicapped did not deserve to be lived.
The March 4th 2002, a law, suggested by the deputy Jean-François Mattei the December 3rd 2001, was promulgated. She declares that it is not possible to be compensated for “the damage to be born” and poses the principle that the cost of the care to handicapped must be dealt with by the national solidarity; but this last provision remained dead letter to date, only impossibility of obtaining personnel compensation for damage being coming into effect (the v. below judgment of France by the European court of the human rights). It is known under the name of “law anti-Parakeet”. Three months were enough to the proposal to the promulgation of this law which has as an main objective, according to its initiators, “To answer the legal problems and ethics posed by the evolution of jurisprudence relating to the medical responsibility as regards prenatal diagnosis since the Perruche stop of the Court of appeal (November 17th, 2000, confirmed by a stop of November 28th, 2001). ”
The Minister for Health, Bernard Kouchner, thus presented the private bill “relating to prohibition to continue an action of compensation because of a naturally transmitted handicap”:
“Ladies and gentlemen,
For the first time, undoubtedly the union was done against a legal decision: right-hand side and left, believers and unbelievers, valid and handicapped.
All denounced in the terms sharpest one stop of the Court of appeal of November 17th, 2000: Eugénisme, discrimination, handiphobie is the words used by most measured commentators who they are journalists or lawyers.
This bill was born from this emotion. It finds its roots in the values of respect and equality which found our civilization. It expresses by an addition in article 16 of the civil code our attachment with the respect due to the handicapped people.
A child reached of a congenital handicap or a genetic nature can it complain to be born crippled instead of not being not born, such is the question that it is asked to you to slice by the law. ”
Regularly, since 2002, of the couples call into question this law, which prevents a child from being compensated because his life for sufferings, polyhandicapé, could have been avoided. The European Cour of the human rights was in its turn seized by parents.
Arguments in favor of jurisprudence Parakeet
It would be inaccurate to say that the unanimity was done against this stop. It should be stressed that it was returned by the plenary assembly, i.e. by all the advisers of the court of appeal joined together, which indicates a certain unanimity of the high court.
The defenders of this jurisprudence stress that it is false to say that the court compensates the damage to be born. It is the damage to be born handicapped which is compensated. Thus, if Nicolas Perruche had been born without lesions, it would not have been entitled to repair.
In fact, the Perruche stop compensates for the first time the personal damage for the child, whereas until now, jurisprudence compensated only the parents for their material loss (the cost of the education of an handicapped child at this point is enormous) and moral (spectacle of the sufferings of this child, attack in their living conditions). However being naps compensating the parents, they alone belonged to them, free with them to spend them with their own way, including with a another aim that interest of their child: the law found there nothing to repeat. Lastly, in the event of death, these sums are included in the succession, i.e. distributed with share equal between heirs (including nonhandicapped brothers and sisters) and are subjected to death taxes; however considering the high amount of these sums, a considerable share is seen thus taken. The allowance of damages to the child himself limits the capacity of the parents to make of it use since they have only the legal administration of it, and present as principal interest that these sums are in its inheritance and are intended for the assumption of responsibility of its damage its life during, including after the death of the parents, without being subjected to death taxes. Far from being a hostile jurisprudence with the handicapped people, it protected them well better than the state from the former right.
The judgment of France by the European Court of the human rights
In two stops of the October 6th 2005 (businesses Maurice and Draon), the European Cour of the human rights condemned France unanimously of the 17 judges forming the Large Room for the retroactive application of the law known as “Perruche anti-stop”. The European judges considered the compensations versed until now with the applicants “clearly insufficient”.
It was based on the article 1st protocol number 1 of the European Convention of the human rights which grants “to any natural person or morals” the “right to the respect of its goods” what includes/understands the Créance S, i.e., in the species, the right to be compensated for the damage which the French Court of appeal had recognized.
The Court underlined “that while removing purely and simply with retroactive effect an essential part of the credits in repair” to which could claim the handicapped newborn “the French legislator it deprived of a preexistent financial asset and belonging to its inheritance”. It also points finger the fact that since 2002, the commitment by the State to deal with the associated costs with handicapped birth had not been held, and that the families which had brought proceedings of compensation which had been closed to them by the law of the March 4th 2002 did not have an equivalent compensation.
Putting itself in conformity with this judgment of the European Court of the human rights, the first civil court of the Court of appeal handed down three judgments the January 24th 2006. She declares that the law “anti-Parakeet” cannot apply in a retroactive way to the businesses which were already in front of justice at the time of the vote of the text.
| Random links: | Jean de Carvajal | Llama max-1 | Hemitriakis | Struganik | Association of the civils servant of Antigua-and-Barbuda | Bagagiste_de_Katherine_Anne |