A woman had a 20 week pregnancy scan. The scan was read incorrectly, she was told her baby had no abnormalities. Her baby was born with spina bifida. The people who performed the scan admit they had made an error. The mother can’t meet the costs of physiotherapy that are crucial to her child’s well-being. She tries to make a claim under ACC: New Zealand’s accident compensation scheme, which is known to be quite generous in its coverage of costs when an individual meets the criteria. In order to successfully claim for this coverage, the mother must prove that the failure to provide treatment – in this case, the failure to have the abortion that she would have had if she had correct knowledge from the scan – has led to a personal injury.
Let’s be very clear about this: In order for her to successfully claim, she needs to state that she would have aborted her child had she known it was disabled, and that the resulting child’s condition is a “personal injury” to her as the mother.
And that is what she is claiming.
She states too that she loves her child, she wants the very best for her child, and it hurts her to make these sorts of claims about her child. Remember too that this is the only way she can see to be able to afford much-needed treatment for her child: By successfully making a claim under ACC. You need to be aware too that ACC makes what is considered by many to be an arbitrary decision between providing cover for disability caused by accident, and not covering disability present at birth. These are the hardships and injustices this mother is up against. I want you to keep all that in mind, because what follows is going to get ugly, and will upset some people.
In this post I am going to delve more deeply into the legal issues at play here and why the mother is forced into this line of argument. I will not get highly technical; I want this to be accessible because I want to help people understand this story. I am no expert in this area either, I am relying on a general legal background to help me through the mire.
The case originated as an appeal against ACC’s ruling not to cover the mother. Both the District Court and High Court dismissed her appeals, but the mother has won the right to have the Court of Appeal hear her case. The child is now five years old.
First, the word “treatment” is important here, because the mother needs to argue that she was injured by the failure to provide treatment that should have been made available to her, through the error of the scan readers. It appears that in New Zealand and in most of the world, the option to “treat” spina bifida is not to perform surgery: “…intra-uterine procedures to treat spina bifida before birth remain experimental and are only practiced in one or two centres in the United States of America.” (Quote from High Court decision.) Rather, if one wishes to “treat” the condition, the treatment available is abortion.
Therefore, her strongest argument would depend on her consistently claiming she would have chosen to have that treatment – the abortion – had the option being made available to her.
Next we have the question of “personal injury.” How has the mother suffered some personal injury here, surely such a claim would have to be made on behalf only of the child (if at all)? First, to look to the mother’s claim.
The pregnancy itself has not caused injury to the mother, and yet that is the outcome of the failure of treatment: the continuing pregnancy. How can the mother call the child’s condition after birth, which harms the child directly and not the mother directly, a personal injury? She can do this by having the lawyer make a claim along these lines: “The continued development of the child’s condition is, in itself, harmful and injurious to the appellant mother.” (Quote from High Court decision.) In the High Court it was decided that the child, being a separate person upon birth, is the one – if anyone is the one – with a claim here, where the mother suffered no additional, separate physical injuries.
What of the child’s potential claim then; why would the mother persist with a claim in her own right? What does such a claim amount to for the child in its own right, when the only alternative result of the ill-read scan, was abortion, was death? The child would be claiming, essentially, that the wrong done to it, was life. That it is “wrongful life.” The High Court judge agreed with a decision by the Court of Appeal of England and Wales on this general issue, where that court stated: “to entertain the child’s claim would be to contrary to public policy as a violation of the sanctity of human life.” Which is to say, essentially, that a claim made under the child’s name, would be ethically and legally abhorrent.
Do you see then, why the mother finds herself making these horrible claims? Can you see past the horror of what she is forced to say in a desperate effort to get her child appropriate care, in the face of a system set up in a way that disadvantages those born with disability compared to those who came to disability after birth? Or are her claims too stomach-churning for you?
I will tell you what I personally think and feel, though I am torn on this and unsettled in my own views.
What I hear is a mother who loves her child, doing whatever she must to get her child the best shot in life. I see this as a story about ACC, and the wording of ACC (“treatment,” “personal injury”). I see her arguing, hoping, that other people will understand the division between choosing an abortion for a child you will thereby never know, versus endlessly and completely loving the child you now have.
I see a public ready to vilify her for her readiness to speak about how she’d have liked to abort the child she now has, and for promoting a view about the abortion of the disabled. And I very much so understand that public, because I have that reaction too; it’s hard not to. Does anything – ACC, poverty, the well-being of a child – excuse saying you wish you’d had the option to abort your child? Do we not have to weigh-up the well-being of the child who may receive the ACC payment, against the mental and emotional well-being of a child hearing the world being told their mother would have aborted them?
But don’t we also have to be honest about the fact that women do have the right of abortion, and have chosen to abort for much less than serious disability? I don’t think we can tackle this whole issue, without staring in the face of the law and policy around abortion and even the issue of eugenics. (I have written a bit about this in the past too, in relation to an earlier New Zealand news story, but around Down syndrome and International Crime.)
So the issues and consequences run deep. If the upcoming court case is successful, it will have wide-ranging implications, but it looks unlikely to succeed. At the very least, it will be another opportunity for our courts to confront these issues, and what an unjust government support system forces parents to argue in their efforts to get their children the care they need.
- ACC Claim Mother: I Would Have Aborted (NZ Herald, Feb 27, 2013.)
- Mum will struggle to win ACC case – lawyer (Yahoo NZ news, Feb 27, 2013.)
- High Court Decision (click on PDF link that comes up second on this search) (March 2, 2011.)
- Accidental Baby (MacDoctor Sciblogs Post from Nov 2009, in response to the District Court case.)