In the latest “wrongful birth” lawsuit, a mother is suing the NHS for allegedly not testing her unborn baby for Down’s syndrome, and so depriving her of the opportunity to abort him.
“Would have terminated pregnancy”
Edyta Mordel, 33, is suing the NHS for £200,000 after her son Aleksander, now four, was diagnosed with Down’s syndrome at birth. Her medical notes say she was “very upset and angry” when Aleksander was diagnosed after his birth by caesarean section in 2015.
Her barrister, Coldagh Bradley QC, said a test would have revealed a high chance of a Down’s syndrome diagnosis.
He said: “Miss Mordel would have been offered an abortion and her partner, Aleksander’s father Lukasz Cieciura, agreed they would have terminated the pregnancy.”
Did she change her mind after the birth?
She alleges that she believed the NHS carried out prenatal tests and she was given the all clear. However, the tests never happened, and an NHS lawyer claims she actually declined the test because of the increased risk of miscarriage.
A sonographer wrote ‘Down’s screening declined’ in her medical notes. Michael de Navarro QC, the lawyer acting for the NHS trust, said it was ‘inconceivable’ that the sonographer would have written that screening was declined if that was not true, and that Ms Mordel had changed her mind about taking a test between her first midwife appointment and her 12 week scan.
What are wrongful birth lawsuits?
Wrongful birth lawsuits are a disturbing phenomenon that reinforce the view that the birth of a child with a disability is a harm for which one may be compensated. They also encourage the perception of the disabled as people whose existence should have been prevented.
Figures from 2017 reveal that NHS Litigation Authority paid £70 million to parents in ‘wrongful birth’ cases in five years. This huge financial liability is likely to put pressure on doctors to encourage screening rather than offer it as a neutral option. Parents who receive a diagnosis of Down’s syndrome or other conditions are already put under pressure by doctors to choose abortion. Actress and Down’s syndrome advocate Sally Phillips recently told a conference of medics that the current situation, where the attitudes of healthcare professionals towards the ‘screening’ process are intrinsically and subconsciously biased towards termination, was endorsing a form of eugenics.
She also made the link with wrongful birth lawsuits, saying: “Many women are repeatedly offered terminations even after expressly saying they did not want them. I ask you on their behalves – has the fear of ‘wrongful birth’ lawsuits altered practice? Has this anxiety spread from you to your work and your patients that people feel they have to offer terminations again and again?2
Ms Phillips also revealed that in those hospitals which offer NIPT (non-invasive prenatal screening) the Down’s syndrome live birth rate is down 30%, while in those hospitals that do not offer NIPT it is down 9% – illustrating that the screening is indeed leading to a marked increase in abortions of babies with the condition.