On The Tort Liability Of Wrongful Birth

The Chinese words "bu dang chu sheng" comes from Anglo-American law, which is the translation of the relevant English word "wrongful birth". It refers to the claims that are brought by those parents who give birth to their inborn disable children as a result of prenatal errors and negligence by medical institutions.In our country, wrongful birth is a new type of law case. With the development of our society and science and technology, with the increasing level of our education and with the improving of the quality of our people and the strengthening of the awareness of protecting our rights by law, recent years, it is no wonder to see the increasing number of the cases of wrongful birth. But the related development of theoretical law is far away from the needs of the practice.According to china’s civil law, the relation between the pregnant women and the medical institutions is some kind of contractual relation. Therefore the pregnant can protect her rights by charging the medical institution on the basis of the responsibility due to the breach of contract. But the limitation of this way is obvious. First, according to the principle of relativity of contracts, only the pregnant woman has the right to claim. Second, responsibility of breach of contract is just about property. The emotional pain of the parents, therefore, is unable to get relief. So it would be better to protect the parent’s rights through the liability for tort.To determine the cope of the compensation is what we should do after we have already chosen the best way to protect our rights. There are two main aspects which are supposed to be taken into consideration, the pecuniary damage and the emotional damage. And pecuniary damage consists of general cost and special cost. After the determination of the compensation cope we have to establish a reasonable method to calculate the amount as accurate as possible. Under the conditions where we are now, the counterfactual test is a relatively fair and scientific way to solve the problems. It is highly recommended that suggestions from experts should be combined and be regularized as rules and regulations through the establishment of laws so as to make up for the weakness of the law related to wrongful birth cases.