On The Tort Compensation Of Wrongful Birth

"Wrongful birth" is the concept of the Anglo-American tort law. It is a new medical tort case in the context that modern medical technology continues to improve and postnatal care concept is deeply rooted. Medical staff failed to find the birth defects due to negligence. Sometimes even though they found, they did not inform the husband and wife or inform not exactly.The mother gave birth to the child with birth defects at last. The couple prosecuted medical institutions to claim compensation. This is the tort compensation of wrongful birth. Wrongful birth tort compensation from the beginning there is a controversy that never stopped, which focus on the life ethical rationality and legal aspects. Although the national historical and cultural background is different, the negative attitude to the positive attitude is a clear trend.In China, the tort compensation of wrongful birth has not been clearly defined in the legislation. In judicial practice, the court verdicts for wrongful birth cases are very different.Gradually increased patient disputes impact on social harmony and stability seriously. If it cannot be resolved for a longtime, the citizens will not trust the legal authority.Therefore, the study has important theoretical value and practical significance of the tort compensation of wrongful birth.This paper focuses on the major controversial issues and analyzes from four aspects:Chapter Ⅰ:The theoretical basis of tort compensation of wrongful birth. In the first chapter, the author analyses the four concepts:wrongful birth、wrongful life、wrongful conception and medical malpractice.The important emphasis is legislation and practice about the tort compensation of wrongful birth in different countries and regions.Chapter Ⅱ:the author points out that the plaintiff in litigation about the the tort compensation of wrongful birth has claim on tort law and contract law, but the claim in contract law has significant limitations. So the plaintiff in litigation about the the tort compensation of wrongful birth should choose the claim on tort law. Chapter Ⅲ:The principle of the imputation of tort liability for wrongful birth and the elements for wrongful birth. The principle of the imputation of tort liability should be the principle of presumption of fault. The elements for wrongful birth are the negligence、 the illegal behavior、the damage、the causal relationship between the negligence and the illegal behavior.Chapter Ⅳ:The problem is about how to get the tort compensation of wrongful birth. The part having the right is the parents who should raise the child who has the birth defects. The part to perform the obligations is medical institutions. Compensation should include material damages and compensation for moral damage. But compensation should not apply the principle of profit and loss balance.