The birth of a child can lead to damage that deserves financial compensation: this is the meaning of the judgment rendered by a chamber of the court of first instance in Brussels. This verdict was delivered a few months ago and had gone unnoticed until Dutch-speaking lawyers and newspapers questioned its scope on Tuesday 23 November. By deciding in the case of a “drug baby”, given birth to cure the incurable disease of his brother, the Brussels court overturned Belgian and international case law according to which the birth of a healthy baby cannot be analyzed as a damage to repair.
The complex affair began in 2010 when, on the advice of their doctor, a couple from Madrid went to the fertility clinic of the Flemish University of Brussels (VUB), one of the most renowned European institutions. The couple had a baby boy with beta thalassemia, a genetic disorder of hemoglobin. The only treatment likely to permanently eradicate this condition is a bone marrow transplant from a person not carrying the gene concerned and compatible with the recipient. The parents, who did not meet these conditions, therefore considered in vitro fertilization (IVF) likely to give birth to a baby called “medicine”, because capable of saving his brother.
Belgian doctors produced three embryos, only one of which – the one diagnosed as a potential donor – had to be transferred. But the clinic was wrong and two embryos were implanted, resulting in the birth of twins, of which it turned out, moreover, that none was ultimately a compatible donor. Still looking for a solution, the couple resorted, in 2018, to a new fertilization in Madrid, which resulted in the birth of a donor baby. The eldest marrow transplant could be performed in 2020.
“Impoverishment” due to births
The couple then went to Belgian courts to demand a sanction against the VUB and moral and material damages. Parents argued that they wanted two children and now had four. The court ruled in their favor: it awarded moral damages of 27,000 euros to the mother and 11,000 euros to the father, as well as material compensation of 25,000 euros to the couple, on the grounds of the “Shock” suffered when he learned that the twins could not serve as donors and “Fear and risks” generated by a new pregnancy.
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