Wrong Birth Damages The Study

Wrongful birth and wrongful life are conceptions of American Law. When the woman became pregnant, she went to the hospital to take a pregnancy test, the doctor faild to check out the fetus with potencial defect or faild to do his duty reasonably to inform the parents the fetus's condition because of his negligence, which made the parents misunderstood that the fetus was healthy and bore a disabled child in the end. The claim brought by the parents to sue the medical institution for the doctor's medicial malpractice is called wrongful birth action. The claim hold by the disabled child is called wrongful life action.This article mainly studys on the damages of compensation of wrongful birth action. After the first appearance of the wrongful birth case in American in 1967, it made wildly discussion in the whole world, and now it has become a hot topic. In American, the scholars'discussion of the wrongful birth action mainly refers to the three issues of whether women have the right to abort or not, the child born with defects is the realization of value or the cause of damage, and whether there is legal cause between the damage and the doctor's action . The answers to the issues dicide whether wrongful birth action can be recognized by the courts. From the point of the essence of wrongful birth, most countries in the world apply Tort Law to despose of wrongful birth action, which hold that the defendant has infringed the plaintiff's 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. According to Chinese law, the wrongful birth action is a kind of claim of defaulting the contract, because the defendent didn't perform the contract's duty. At the same time, the defendent'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 scole of the compensation includes the special medician cost, the cost to look after the child and the education cost that the parents pay for the disabled child, and also includes the common raising cost and the spirit damage compensation to produce a disabled child.