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Law and prenatal diagnosis in France. Persistence of a medical model of disability or personal rights affirmation?

Abstract : Over the last thirty years, conceptual approaches of disability have derived from a medical model based on deficiency. They have shed light on the way societies and environments were shaping and producing disability , which was formalized in WHO classification in 2001 . Non-discrimination rights offered judiciary tools to promote equal access to disabled people in various areas of social life (schooling, employment, etc.). In the meantime prenatal diagnosis technologies were developed as public health tools to “prevent” the birth of severely impaired children (Alter 2011). Prenatal screening and prenatal diagnosis have become a growing part of pregnancy medical care in western countries. Along with (mostly) liberal politics of abortion, they reconfigured both the way women experience pregnancy and the practitioners’ professional ethos. Law has become a new regulator of medical practice. French society relationship with impairment became more complicated as French Supreme court, in a famous decision (Arrêt Perruche), triggered a controversy in 2000. In the contested judgment the court recognized the right to an important compensation to a severely impaired person born after his mother contracted non-diagnosed rubella during her pregnancy. The mother had clearly stated that, as she was entitled to by French law, she would resort to an abortion, should the rubella diagnosis be confirmed. As advocates of both sides fought over the decision, French lawmakers decided to neutralize its effects in the first paragraph of a law designed to state patient’s right . On the cited paragraph it was mentioned that one could not be entitled to be compensated for one’s own (impaired) birth. Only parents could file a malpractice suit and ask for their moral damage compensation. This communication will analyse French law and litigation about prenatal diagnosis by drawing on a corpus of 50 cases as well as law comments. It will specifically address the conceptions of impairment, disability rights, family rights implicit in the damage compensation decisions. It will document the paradox of a law that refuses to consider impairment as a damage to be compensated for the child born with disability and however grants extended moral damages to parents and siblings.
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Submitted on : Friday, July 17, 2020 - 2:15:12 PM
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  • HAL Id : hal-02901670, version 1


Emmanuelle Fillion, Quentin Mameri, Bénédicte Champenois-Rousseau. Law and prenatal diagnosis in France. Persistence of a medical model of disability or personal rights affirmation?. IV Annual Conference of ALTER "Questioning contemporary societies through the lens of disability", ALTER - European Society for Disability Research, Jul 2015, Paris, France. ⟨hal-02901670⟩



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