The Study On The Civil Liability Of Wrongful Birth

"The mistake was born" this concept originated from the United States of tort law, is mainly refers to the negligence because doctors not diagnosed with potential genetic defect fetus, or fails to its parents exercise reasonable inform obligation to causing has serious disability or illness of children born. As a result of each country legal tradition for error was born is different, how should deal with cases of existence a wide range of dispute, the focus mainly concentrated in error was born responsibility nature, invasion of object, imputation principle, liability structure, the responsibility, etc. In our country, because the study for such cases started late, legislation, the court no corresponding provisions of the verdict in such cases also each are not identical, inconsistent judicial ruling status, can cause the parties to award the justice of doubt, of legal faith detrimental to citizens, destroying the legal authority and unity of the legal system, and even cause when some of making racially behavior, thus affect social stability. So, for the above problems are research has the important theoretical and practical significance.Paper from the concept of mistake, born on its features, analyzed and summarized in medical accident of birth and error, error life, pregnancy, and fetal mistake for the infringement, the author analyses the relationship between clarify, pointed out the mistake was born does not belong to medical accidents, and because of its own uniqueness also and mistakes in life, false pregnancy, fetal tort compensation for damage this distinguishes three lawsuits.According to our country's existing law, born to a false case could adjust by contract, but this adjustment method is obviously not enough for the victim protection, which protect victim maximum benefit from the Angle of tort law, it is necessary to adjust for error was born cases. Papers through comparative analysis and research, and points out that the error was born there are damage and causality, in our country completely through born of tort liability law cases adjustment, mistake to victims provide the maximum protection.Born in error, medical institutions, which fails to fulfil obligation disabled son was born, parents' lawful rights have been violated. In this paper the object that is neither abortion liberty, also not be healthy birth parents, but the option of informed consent rights. Informed consent rights include full right to know and self-determination, including two parts, fully informed as the premise, and decides for the purpose.Our tort liability law establish imputation principle of tort liability for fault liability principle and no-fault liability principle with fault, fault-presuming still based fault liability principle, it shall be under. Born in error, the doctor no doubt existence fault fault liability principle should be applied, but for the wrong case has some particularity born in the bear burden on the form of using fault-presuming is more reasonable, namely by medical institutions shall undertake corresponding proof responsibility. Based on this, the responsibility of mistakes born constituents including the illegality of the behavior, damage results, causal relationships and subjective fault.Born in error in the lawsuit claims subject should be disabled son parents, both are comfortable lattice, just for claim claim subject based on the different claims they differ right range. Error caused birth of tort the main responsibility of the medical institution for qualified, special circumstances also can be in personal clinic practice doctor. The scope for damages for disabled son including parents pay the medical treatment, care fee, special education, deformity appliance auxiliary fee and disabled son produce because of bearing the spiritual damage compensation, but not including basic raising costs. In the medical institution has corresponding defenses, even if its behavior caused damage, also can not assume tort liability.