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Don’t Dwarf Me – Nili Broyer October 1, 2011

Posted by jewishdisabilityunite in Society.
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In December 2007, the Haifa regional court, headed by Judge Bilha Gilaur, charged the State to pay a short young man 750,000 NIS in compensation for ‘wrongful birth’. Allow me to risk summing this up in layman’s terms: ‘It’s a pity you were born.’ As a little person myself, I heartily object to this patronistic approach. The crime is not the birth of a little person, but the fact that society views his life as a tragic mistake.

Numerous reports have shown that Israeli society is trigger-happy wherever selective abortions of embryos identified as ‘flawed’ are concerned. The state invests considerable sums in pre-natal tests. And from a legal point of view the detection of a flaw – any flaw – is enough to allow the Committee on Terminations to permit an abortion.

The case in brief: In the 21st week of the pregnancy concerned, the fetus was identified in an ultra-sound test as having short arms and legs in relation to his body. After the Committee on Terminations had given license for the abortion, the hospital decided to refer the case for further testing, because of the advanced stage of the pregnancy. In the end, the hospital refused the abortion application and the pregnancy continued to term. The legal charge was brought by the parents on behalf of the 14 year-old boy, who, in accordance with protocol, was not present in court at any time during the proceedings.

As a little person, and as an activist striving to create legitimacy for difference in Israeli society, this case touches my most sensitive nerves. From my point of view, the court’s decision to compensate a short person for a hospital’s refusal to permit his abortion, is not only absurd, but insulting. I feel a personal need and a social obligation to negate each separate claim:

“Life with  a defect is worse than death”: This is a highly problematic and dangerous attitude, which was qualified in the last ruling given in such a case (1986) as applying only to rare cases in which the defect is exceptionally severe, and it can be determined that it would be better for the claimant had he never been born. It would be difficult to claim, in the case of dwarfism, that this is an extreme case justifying euthanasia, and, indeed, the judge did not take such an attitude towards the young man in question.

“Life with a defect is worse than life without a defect”: Here the comparison is between life with a given condition and life without it. The damage varies according to the severity of the defect, and even minor defects may be enough to qualify the claimant for compensation. The aim of the compensation here is to enable the person to live with his defect, and for this purpose it is necessary to assess how much damage has been inflicted on him. As, in this case, the claimant is an adolescent, it is possible only to speculate how tall he will be when he has finished growing. On the basis of expert opinion, the judge rules that he is predicted to reach a height of around 1.50 meters. Aside from the question of his height, the young man was examined for medical disability. Based on expert consultation and testimony, the court noted that the claimant does not suffer from dysfunction, is not under medical surveillance, and is as able as any other person his age. He participates in trampolining classes, plays football and guitar, and cycles.

 “Distress caused by social reactions to dwarfism”: When we decide not to view this man’s condition as a disability, we move from assessing dwarfism in a medical context, and instead see it in an aesthetic-social context. It was stressed in the protocol that “the claimant wishes to compensate the young man for the pain and suffering to which his short stature expose him. He claims that the boy’s anguish and frustration are acute, ‘and he will be forced to cope daily with the looks and reactions of other people to his different shape.’” As a result of this discriminatory and stigmatic attitude, which does indeed exist, and which many of us must cope with, the prosecution claim mentions the likelihood that, when he grows up, the young man is likely to face difficulties in finding work and in building a relationship.

The judge responded “If a little person qualifies for compensation on the basis of his appearance, then why should we not compensate ugly people also?” The judge recognizes society’s different attitude to people with disabilities, and the social damage involved, but rejects this claim as a basis for compensation. I would add to this: let society not salve its conscience by compensating those people within it that it oppresses and excludes – what is needed is a real change in itself.

“Negligence in decision making”: Since, from the twenty-fourth week onwards a fetus can live outside the womb, such that killing it raises more serious ethical questions, the hospital chose to refer the application for an additional hearing. Professor Caspi, the director of the hospital’s obstetrics and gynecology department, decided independently, without calling together the committee, and without meeting with the parents and hearing their view, to rule against the parents’ application for an abortion. The judge saw the decision to continue the pregnancy as a reasonable one, but ruled that “a reasonable decision does not justify a flawed and substandard decision-making process.”

In tort law, it is not sufficient to show that a decision was taken in a negligent way, but also necessary to prove that this caused damage.

In order, then, to compensate the young man for criminal negligence, it is necessary to show that his birth as a child with dwarfism is the damage he has suffered. Identifying dwarfism as the essence of the damage done is a dangerous and harmful claim, casting a negative light on the life of every person whose body is different from the accepted standard. The court, which is charged with protecting justice and ethics in society, is absolutely unjustified in creating and perpetuating prejudices such as this.

The Israeli court, then, ruled that the State compensate the young man to the tune of 750, 000NIS, as global damages for his birth as a little person. It is clear that this compensation is not for medical disability, this claim having been negated, and, as the judge ruled, it is also not for society’s attitudes to people with physical differences. The question remains, then, on what basis the judge ruled for this compensation. Is it possible that height stands alone here, outside any context, medical or social? No other reasoning is attached to the judge’s decision, leaving one to infer that it was based on an attitude that dwarfism is a personal tragedy that must be compensated for.

As this judgment comes by way of precedent, it is clear that the decision is likely to encourage hospitals and doctors to adopt a stronger policy in favour of permitting abortions on the basis of defects detected in the fetus. Professionals’ fear that they may find themselves in court for refusal to allow an abortion, even in cases of “minor defects,” may amplify an attitude that already dominates in Israel, and increase the tendency towards selective abortion. Far beyond the mistaken decision, in my eyes, on the part of parents, then, is the injustice caused by the court’s decision. The fact that this ruling enables archaic and anti-social thinking to be perpetuated into the twenty-first century in the State of Israel is truly shameful.

Nili Broyer directs the Center for Disability Studies Research at Alin Beit Noam. The original article was published in Hebrew on Y-net, 27/06/2008. Translation: Jessica Sacks.