By Dave Andrusko
Overruling a lower court decision, the New Zealand Court of Appeals ruled yesterday that the parents of child born with spina bifida might be able to receive payment from the Accident Compensation Corporation because doctors failed to detect the fetal anomaly, thus denying parents the opportunity to abort.
“We consider that the continued pregnancy of the appellant following a misdiagnosis in the 20 week [ultrasound] scan is capable of being an injury suffered by the appellant,” the court ruled.
The case has now been referred back to the District Court, where it will be decided whether the mother would have been able to obtain an abortion under New Zealand law.
According to Michelle Kaufman, “An abortion after 20 weeks gestation can only be obtained lawfully in New Zealand if ‘the person doing the act believes that the miscarriage is necessary to save the life of the woman or girl or to prevent serious permanent injury to her physical or mental health.’ The ACC [Accident Compensation Corporation] says that the woman would not have been able to obtain the abortion.”
In 2007 the radiographer initially read the ultrasound scan as normal, but an independent specialist who reviewed the case said the signs of spina bifida were there.
The parents seek compensation to cover the costs of caring for their daughter, the New Zealand website, Stuff.co.nz reported. The ACC argued that compensation cannot be paid out as the situation does not meet the criteria for personal injury.
Back in 2009 the unidentified mother spoke about the case, saying she was not ashamed of saying she would have aborted her daughter had she known.
“In no way are we saying we don’t want her now,” she said.
“It would have been a very difficult decision – not something taken lightly – but with the information we would have had at the time, had they given it to us, that’s the decision we would have made.”
Philip Schmidt, the family’s attorney, previously said that the case could set a standard amount of ACC coverage for similar cases.
Mike Sullivan, who heads the disability rights organization “Saving Downs,” was quoted as saying, “This is what happens ….the children become reduced to nothing–wrong even to exist.”
The underpinning attitude behind the decision is that those with disability, both born and unborn “are the true burden on society,” he said.