The Thalidomide Affair

"Children who were robbed of the magic of their childhood by a man-made disaster are now approaching the highly sensitive and emotional years of adolescence without arms, without legs and, in some cases, without organs."

So cried British Labor M.P. Jack Ashley last month during a House of Commons debate on a subject that has roused his countrymen as few issues have done in recent years: compensation for some 400 children who were born deformed after their mothers took the tranquilizer thalidomide between 1958 and 1961. Belatedly awakened to the financial as well as the physical plight of the children, Britons have responded with a torrent of outrage directed at the former distributor of the drug, giant Distillers Co. Ltd. More important, perhaps, the outcry appears to have forced a widespread public examination of the outdated laws and traditions that allowed what the Sunday Times called a "national shame" to go so long unnoticed and unredressed.

The law has generally favored the stronger of two unevenly matched sides. On the one hand were the parents of the children; besides the emotional burden they carry, some have had to pay for specialist treatment and equipment, such as electric wheelchairs and home elevators, not provided by Britain's national health. On the other side was Distillers, one of Britain's largest and most profitable businesses, with assets of nearly $1 billion. Distillers makes most of the world's top-selling brands of whisky and gin and owns a host of subsidiaries. At one time these included the pharmaceutical company--since sold--that marketed thalidomide under the name of Distaval until the drug was withdrawn from the market in 1961.

Ever since, Distillers has vigorously denied any legal responsibility. Since no proof of negligence has ever been established and since there was at the time no law in Britain holding a company responsible for the safety of its products, the law was on its side. Distillers, however, did tacitly admit some moral responsibility. The company offered to pay an average $36,000 per child on condition that the suits were withdrawn and the offer accepted as final. In 1969 Distillers proposed to settle on all parents of thalidomide children a lump sum of $7,000,000.

Far Short. Four parents refused, including David Mason, a wealthy London art dealer, who objected to plans to put the money into a charitable trust, which could mean that it would be distributed according to need. Mason held out for three long years in the face of legal harassment and pressures from other parents who blamed him for holding up the cash.

Last spring Distillers raised its offer by $ 1,000,000--on condition that all parents accept the amount as a final settlement (even though it fell far short of one actuarial estimate of the real damages, calculated at $240,000 per child).* In August, Distillers dropped the condition, but Mason and a handful of other parents still held out.

Britain's newspapers, meanwhile, have been severely circumscribed in their reporting on the case since the first suit was launched against Distillers in 1962. Any editor who dares comment on a case sub judice risks being held in contempt of court and sent to jail indefinitely. The silence was broken last fall, when Sunday Times Editor Harold Evans published the first five articles of a planned six-part series on the children's plight. Evans escaped jail when Britain's Lord Chief Justice, Lord Widgery, tortuously ruled that the articles already printed were not in contempt of court, but the last planned one would be (TIME, Dec. 4). That decision silenced the Sunday Times. By then, London Weekend Television had interviewed parents, and editors around the country began to tell the story as reporters.

By Christmas, the story was frontpage news in nearly every daily in the country, and Britons began to raise a storm of protest. In Parliament, Labor's Ashley, who is chairman of an all-party Parliamentary Group on Disablement (and is totally deaf himself), declared: "There are a thousand excuses why these children should receive no money and every single excuse has been scavenged by this company throughout the last decade."

Spirits Glass. By that time, Distillers had raised its offer to $12 million. That stilled the critics briefly--until they realized that inflation had virtually made the amount worthless in real terms than the $7,000,000 the company had offered to pay in 1969. Distillers tried again, offering to increase the amount to $26 million if the government would grant it some tax relief. Alert critics pointed out that the company was really offering the same $12 million, and asking the taxpayers to foot the bill for the remaining $14 million.

Distillers had obviously not calculated the force of protest. First, anonymous posters began appearing around the country, showing, in one case, a spirits glass with a deformed child in the bottom. No fewer than 254 M.P.s signed a motion calling on the company to honor its "moral responsibilities." Then a group of rebel shareholders in the company, including Art Dealer Mason, called for an extraordinary general meeting of the shareholders to discuss possible removal of Distillers Chairman Sir Alexander McDonald--who had been knighted only last year for "services to exports." The charge: "failure to provide adequate compensation" for the thalidomide children.

Almost immediately, major shareholders began lining up to support the proposed meeting; among them were Prudential Assurance Co. and Legal and General Assurance Society, Britain's two largest insurance companies; Bankers Trust; the General and Municipal Workers Union; and dozens of local authorities, including those of London's boroughs and the cities of Birmingham and Manchester. Wrensons, a chain of supermarkets, banned Distillers' goods from its shelves. On the London Stock Exchange, Distillers' shares dropped a total of $70.5 million in value in nine days. Two weeks ago, the company yielded to the pressure and made a far more generous offer that parents are still considering: a total of more than $51 million, $12,000 to be paid immediately to each family, and the rest put into a charitable trust fund that would guarantee a lifetime income.

The thalidomide affair has already had an incalculable impact on the British way of doing many things. The City of London--that is, its financial institutions--"will never be the same again," declared a spokesman for the Legal and General Assurance Society. Prudential Assurance Co. said that it would have to think about wielding its power as a massive shareholder more often. In Parliament, Labor M.P. Ronald Lewis introduced a bill that would hold drug manufacturers, sellers and distributors to an implied warranty that their product is safe--a first for Britain--and give a child crippled before birth the right to sue. Finally, the laws that gagged Britain's press, and allowed the affair to drag on unnoticed for a decade, may be radically altered, probably forever, by the courageous precedent of Editor Evans and the Sunday Times.

*In West Germany, where the drug was invented, the parents of some 2,000 surviving children settled with Chemie Gruenenthal in 1970 for about $14,000 each. In Sweden, Astro Pharmaceutical agreed in 1969 to pay $1,200 a year for life to each of 100 victims, with cost-of-living increases built in.

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