One million euros for depriving them of the right to decide on an abortion

The girl's parents have had to modify their house to fit the little girl's needs. / ep

Malpractice prevented seeing the malformation of the fetus. The girl was born with Apert syndrome and autism, and her parents will resort

When she was born, her daughter had malformations, visible on her face, hands and feet. Deformities that were not previously detected by the gynecologist despite the fact that, had there been no malpractice, they could have been seen on ultrasound. Especially at week 20, which allows the mother to decide if she wants to continue with the pregnancy or terminate it. Now the ruling of a court in Madrid has condemned the insurer of that doctor to pay one million euros for the deprivation of the right to decide whether the parents continued the pregnancy or not.

“It is not about debating abortion, but about the fact that parents have the option that a life does not come to be born,” explains Ignacio Martínez, a lawyer who represented the plaintiffs and a member of the Patient Advocate. “In this case they were deprived of that right, which they may or may not exercise. That's not the point. It was up to them to decide if they had it or not."

The girl, who "hits objects continuously" and whose "look does not respond to anything," according to Martínez, was born nine years ago. "The legal battles are very long," says the lawyer. The offspring has profound autism and Apert syndrome, which produces early consolidation of the cranial bones (craniosynostosis), which affects the face and anomalies in the hands and feet (bilateral syndactyly). He also presents disability and psychomotor retardation, among other diseases.

The deprivation "of the right to voluntary interruption of pregnancy" was what the parents claimed, who have not had any more children and prefer not to reveal other personal data. In the lawsuit they alleged "moral damage" by "injuring their autonomy of will" and for "seeing their son suffer", and "patrimonial damage" for the "extraordinary costs" of a "great invalid creature" who will always "depend on third parties ». “It is said: how much money!” Martínez criticizes, referring to the amount of compensation. “But it is insufficient. The family wants to guarantee his care throughout his life, which can reach an average of about 80 years.

The judge of first instance nº 56 of Madrid, María Gavilán Rubio, decided to agree with the parents. “There is no compensation for congenital damage”, for which the insurer, Sanitas, is not responsible, but it is for the “loss of the right to voluntary and legal interruption of pregnancy”, she indicates. The plaintiffs, and the ruling, conform to the Supreme Court's "unfair birth" doctrine, which deals with diseases and anomalies that could have been detected during pregnancy and that "due to omission of diagnosis" or "lack of indicated prenatal tests in the protocols» the pregnant woman is not informed so that she decides to abort or give birth. The woman also does not have to prove that she had an abortion. “Before, yes, but it was an offensive test,” says Martínez.

Full time

During the trial there were two key moments. The first, when the insurer demanded an evaluation of the little girl with her experts. A pediatrician, psychologist and other specialists were mobilized to the Balearic Islands, where the family lives. "I had not seen her until that recognition," says Martínez. “The experts were quite impressed. She is a girl who requires complete attention 24 hours a day. Her mother doesn't know if she recognizes her, but the girl is moving and we have to go after her».

The "continuous care" of the son has forced the parents not to continue developing their "personal projects," says the ruling. Especially the mother, who dedicates herself exclusively to providing security for the girl and meeting her needs, even the most basic. “They are very affected, especially the mother. The father at least rests when she goes to work but she has completely lost her social and work life ».

Among the expenses that they claimed in court were the reduction of working hours or the termination of employment, special therapies outside of social security (speech therapist, psychologist, physio, psychotherapy...), travel by plane from the Balearic Islands to Madrid for surgeries that correct the malformations and works of adaptation to the house».

The other key moment of the trial was experienced when the insurance company's experts maintained that autism could not be linked to the undetected malformations of the fetus, while the Social Security pediatrician defended the opposite. The judge decided to give credibility to the one who "treats her since her birth", the Balearic pediatrician who told her: "I would like you to be with her for an hour, so that she realizes what we are talking about her." The judge stipulated that the compensation would be 1,025,380 euros, to adjust it to the girl's life expectancy, which she estimated at 50 years. The parents will appeal the sentence.