Font Size: a A A

Analysis On Tort Liability Of Wrongful Birth Action

Posted on:2011-05-06Degree:MasterType:Thesis
Country:ChinaCandidate:J W QuanFull Text:PDF
GTID:2166360305457616Subject:Law
Abstract/Summary:PDF Full Text Request
'Wrongful birth' comes from Anglo-American law, which is the translation of the English word. It is now generally accepted and understood that wrongful birth claims are brought by parents of an unwanted and unexpected child for the pecuniary and emotional damages incurred as a result of prenatal errors and the corresponding lacking of surgical procedures. Wrongful birth usually has two circumstances. First, the parents go to physicians for genetic counseling or check for fear of the birth of infants with disabilities before they decide to have a baby. The parents' genetic defects are not detected for medical negligence actions, and they conceive child because the physicians tell they are healthy. But they give birth to a child found to be suffering a serious genetic disease or disability. Therefore the parents claim for compensation responsibility towards the physicians. Second, pregnant parents go to the physicians to do prenatal examination. The physicians who should have discovered the baby's defects fail to detect due to medical negligence or have not performed the obligation to disclose, so that the parents lose the opportunity to terminate the pregnancy and give birth to infants with disabilities. As a result, the parents claim for compensation responsibility. In China, wrongful birth is a new type of cases. As with the advance of awareness of legal rights for protection and the development of technology, wrongful birth cases occur frequently. Yet the development of legal theoretical circles and practitioners in China lag far behind society development. Now the legal provisions about wrongful birth in our country limit to Article XVII and Article XVIII of Maternal and Child Health Law. But these provisions can not provide good adjustment method for wrongful birth cases. According to Civil Law Theory, contractual relations are established between physicians and pregnant woman. Wrongful birth cases can be adjusted through responsibility of breach of contract. But the above adjustment method is limited. First, on the principle of relativity of contracts, only pregnant and lying-in women can claim for wrongful birth cases. So the right of father of infants with disabilities can not be preserved. Second, responsibility of breach of contract is about property. Therefore, the emotional pain of the parents is unable to get relief. Based on the limitations of responsibility of breach of contract and considered from protection of victims' legitimate interests to an extreme extent, we think that wrongful birth cases can be adjusted through liability for tort besides responsibility of breach of contract. This paper focuses on whether wrongful birth cases can be adjusted through liability for tort.This article can be separated into four sections.In introduction, the concept and character of wrongful birth and Between comparison similar concepts are introduced. The scope of investigation of wrongful birth cases are defined. The specificity of the cases is pointed out.Section one proposes the problems on the way of dealing wrongful birth cases in China, through the survey of legislation and cases of wrongful birth. That is, Adjustment on wrongful birth cases through responsibility of breach of contract, can not provide Comprehensive protection for the parents. As a result, it is necessary to use liability for tort which is more useful rather than responsibility of breach of contract to protect the parents' legitimate rights.Section two discusses the necessity and feasibility of using liability for tort to adjust wrongful birth cases. Parents' Informed consent is an important civil rights to be preserved. It is wrongful birth that violate this rights. Adjustment on the wrongful birth cases through liability for tort is an vital way to protect parents' Informed consent. For the relativity and property nature of responsibility of breach of contract, Father's rights and emotional pain of the parents can not be saved through responsibility of breach of contract but liability for tort. So liability for tort is essential for wrongful birth cases. The reasons that objects the establishment of Tort Liability are that no damage occurs or the damage can not be calculated. Besides these two reasons, wrongful birth cases are thought to do damage to child's personality and cause defensive medical actions. By analysis, we find these reasons can not stop the establishment of tort liability. By analyzing the cases of Comparison, we can make a conclusion that it is feasible to use tort liability on wrongful birth cases.Section three centers on causality and fault ,and does research on whether the tort liability of wrongful birth cases can be established in China. Because the illegality and damage is relatively simple and has been discussed above, this paper focuses on whether causality and fault can be established in order to judge whether the tort act of wrongful birth cases can be set up. By investigation on causality theories of two main legal systems and utility of causality test method proposed by Mr. Zhang Xinbao, we can make sure that causality of tort liability of wrongful birth cases can be established. Through the discussion of imputation principles of wrongful birth cases, we think that imputation principles is suitable for wrongful birth cases and physicians' fault need be researched. In wrongful birth cases, the fault type is mainly error. The criterion to judge error contains Subjective standard theory and objective standard theory. This paper adopt the statutory standards of objective standard theory. The Medical Treatment Act of our country provides physicians' duty of care. But in wrongful birth cases, except the duty of care which the ordinary physicians should perform, special duties of care provided by Maternal and Child Health Law must be performed. By any breach of these above duty of care can we confirm physicians' fault. Therefore, physicians' negligent act in prenatal examination is with fault. In all, in China, tort liability can be established in wrongful birth cases and can be adjusted by it.Section four discusses the problem of how the tort liability of wrongful birth cases can be undertaken. According to tort liability theory and stipulation of Tort Liability Act, the undertaker of tort liability of wrongful birth cases is medical institution. The extent of compensation contains property damages and spiritual damages. Property damages mainly include disability correction fee, special education costs and disability equipment costs. The main defenses are pregnancy parental consent, the special constitution of pregnant women, pregnant parents fault and limitations of medical technology or conditions.Section five puts forward with legislative proposals to complete wrongful birth tort liability of Tort Liability Act in China. The stipulations of dealing with wrongful birth cases must be added into Tort Liability Act. Especially claims principal and extent of compensation should be defined.
Keywords/Search Tags:Wrongful Birth, Tort Liability, Constitutive Requirement
PDF Full Text Request
Related items