Research On Protecting The Rights And Interests Of Wrongful Birth

New issues were brought about in the damages compensation law by scientific and technological progress and ethical and moral values change. Wrongful birth from the United States became the focus from the beginning of the 1970s of last century. The so-called wrongful birth, refers to genetic counseling and provision of medical services of medical staff fail to do his duty, and to provide the wrong or inaccurate information, not even provide any information for the parents, believe in which the parents did not know the fetal defects of the children and do not have an abortion, so the children was born. The new point of wrongful birth is: it is the fault of doctors that led to a defective child's birth, the real damage is not the child's own shortcomings, but a child with shortcomings was born. As to the wrongful birth, it is from an unknown to a known process. As to the wrongful birth claim, different country have different attitude. Who is the plaintiff in wrong birth claim? What is the object that has been damaged? The parents of disabled children should be admitted to recover from those damages? What is the basis of the claim? What is the scope of the compensation?We believe that: there is a contract between the parents of children and the medical and health care services. A defective child was born because of the fault of doctors, which led to the damages of the parents. The doctor or medical service should give compensation for the damage. From the point of the essence of wrongful birth, most countries in the world apply Tort Law to depose of wrongful birth action, which hold that the defendant has infringed the plaintiffs right to abort or the right to choose a healthy birth, such as American, England, Canada and Australia and so on. While the few others apply Contract Law to deal with wrongful birth action, hold that the doctor should undertake responsibility for his default of the contract duty, such as German and Taiwan area of China. Although the theoretical circles of France does not recognize the parents have the right for compensation based on the Contract Law and the Tort Law, and have the right to choose one of them to perform, in practice, however, the breach of a contract against the other parties rights, the court also allowed to invoke "the French Civil Code," 1382 relief to the victims Parties. According to Chinese law, the wrongful birth action is a kind of claim of defaulting the contract, because the dependent didn't perform the contract's duty. At the same time, the dependent's malpractice default the doctor's duty of care, and infringe the plaintiff's right of know and self-decision right, which resulted in the birth of the disabled child and cause damages to the plaintiff, so wrongful birth action is a tort action. The parents have the right for compensation based on the Contract Law and the Tort Law, and have the right to choose one of them to perform. The scope of the compensation includes the special magician cost, the cost to take care of the child and the education cost that the parents pay for the disabled child, and also includes the special cost and the spirit damage compensation to raise a disabled child. We should strengthen the social security system as well as legal protection measures, In order to get a better protection for the parents of the disable child.