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Wrongful life claims have always been controversial. Courts in England,1 the USA,2 and Australia3 have generally refused to accept them. However, are wrongful life claims becoming more commonly accepted in continental Europe? After the widely discussed Perruche case in France (now overruled by article 1 of the Act of 4 March 2002 stating that no one can sue for damages for the sole fact of their birth),4 and a judgment of a Brussels tribunal in July 2002 that has passed almost unnoticed, the Court of Appeal of The Hague, the Netherlands, in a lengthy and motivated judgment of 26 March 2003, awarded moral damages to a child born with a severe chromosomal disease.5 This judgment differs from the Perruche and Brussels judgments in that both of the latter failed to show to what extent the negligence towards the mother can at the same time be a negligence towards the unborn child. The Court of Appeal of The Hague did at least attempt to explain this.
According to the Court of Appeal the midwife looking after the mother had a legal obligation not only towards the pregnant woman but also towards her fetus. This obligation can be derived from the medical treatment contract concluded between, on one hand, the employer of the midwife, the Leiden University Medical Centre, and on the other hand, the parents of the child. The Court held that the unborn child could legally be considered as a party to this contract. But even when one does not accept the existence of a contract between the …