In the first successful “wrongful life” suit in the Netherlands, a severely disabled Dutch child has been awarded damages for having been born. Before Kelly Molenaar, now 11, was born, her parents knew that there was a risk of birth defects and asked a midwife at Leiden University Medical Centre whether tests were needed. They were told No and they proceeded with the birth. Had they known of Kelly’s disability, they would have aborted her. The Dutch Supreme Court has ruled that Kelly was entitled to compensation for emotional damage because she had been born. This was a predictable consequence of the midwife’s mistake by which Kelly’s interests were injured, it said.
Joep Hubben, a professor of health law at Groningen University, says that the judgement makes the Netherlands a “legal island”. “Almost nowhere else in the world would this claim be allowed,” he said. He and others are lobbying the Dutch government to ban such claims, as France did in 2001, after a “wrongful life” case succeeded there.
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