"wrongful Birth" Question Of Damages Research

The concept of the "Wrongful birth" originated earliest in the law of the USA. It is the summary statement of the condition that medical personnel or medical institutions who provide the medical services have failed to pay attention to their duties within the scope of obligations, or did not provide relevant information or wrong, or inaccurate information to the parents, lead to the misconception that abortion is not any defect in the fetus, and ultimately lead to defective children birth. In this paper, based on the relevant legislation of different countries and regions, I made a detailed analysis, summarized and summed up to the source of "Wrongful birth ", and related concepts, the legal nature of the right of claim, the duty of subjects, the holders of rights and the scope of damages . And on this basis I made some superficial personal views and suggestions.In the first part, I study the general theory of the "Wrongful birth", and give a brief overview of the origins and concepts of the "Wrongful birth" , and on this basis I made a simple analysis and definition, between the concept of the " Wrongful birth" and other related concepts, such as medical disputes, medical malpractice, wrongful life, and improper pregnancy.In the second part, I clarified the legal nature of the right to request for damages for the "Wrongful birth".Through anglicizing the legal nature of the right to request ,I made the conclusion that lawsuit of the "Wrongful birth" is the competing requests of the action of assumpsit's action and action of trespass. In this section, I emphasized give the reasons for raise an action of trespass. This article first demonstrates that the object of infringing is the right to information and the right to choose abortion, which belongs to the civil rights that tort law protects. Second, this article dose a specific analysis to the four elements, under t the characteristics of he "Wrongful birth " violations.In the third part, I analysis the duty of subjects and the holders of rights of the "Wrongful birth ".Medical staffs as professional knowledge and skills of experts, have some responsibility. But they are conducting their duties only, so the real duty of subjects should be the medical institutions. The holders of rights of this action are three: defective children, the mother and father. The lawsuits for "wrongful life"which the defective children brought are not allowed around the world, the mother can be breach of contract and tort claims filed, while the father can only request the right to initiate infringement.In the forth part, I focus on the scope of damages of the "Wrongful birth",and give comprehensive consideration of the aspects of social policy in the "Wrongful birth" litigation. The scope of compensation in countries experiencing a negative to positive, then the process from small to big. Then I analysis the specific damage, and outlined a framework for compensation. Medical expenses, the cost of a special human to take care and the special education costs should be compensation, and maintenance costs should be limited to the scope of the special maintenance costs, or unfavorable the social and the growth of children. On social policy, such proceedings certainly have a positive practical significance. From the medical field, in favor of the fault to deterrence and prevention of prenatal diagnosis, and protect the rights of pregnant women and fetuses. From the social point of view, it has guiding significance to the promotion and implementation of family planning policy.In this paper, through the collation and distillation of the legal questions which the case of medical damages involved in ,i hope a help to the integrity of such China's legal system and legal practice.