Concerning The Civil Liability Of Wrongful Birth

The term “wrongful birth” refers to those that have caused wrongful decision to givebirth a child with physical defects by the medical institutions or the staff members thereof inthe activities of antenatal examination by violating the laws, regulations, ministerial rulesconcerning medical treatment, health or the standards or conventions of medical treatment andnursing and Medical technical articles. In this cases, the doctor had a duty of reasonable careto check out whether fetus of the pregnant woman suffered severe birth defects, but the doctorfailed to check out, or they detected but didn’t fulfill their inform obligation, thus, parentsmade a wrongful decision to give birth a child with physical defects. The parents prosecutethe medical institution for damage compensation.The opposing idea about the civil liability of “wrongful birth” in theory and judicialpractice is the view of consent and the view of negate. By analyzes the value of the civilliability of “wrongful birth”, the thesis considers that we should admit the existence of suchcivil liability. There are three views about the anspruchsgrundlage of “wrongful birth”, that is,default responsibility, tort liability and responsibilities coincidence. The thesis considers thatthe anspruchsgrundlage of “wrongful birth” is a competition of default responsibility and tortliability, and the application of tort liability can maximize the protection of the rights ofparents of disabled children. The thesis analyzes the constituent elements of the tort liabilityof “wrongful birth”, and focus on the damage or the object of torts in the four elements,considers that the negligence of the doctors and medical institutions infringe on the right ofinformed of the parents. The range of compensation for damages in such cases of “wrongfulbirth” should include property damage and mental damage. The thesis considers that weshould support the claim for special maintenance in property compensation and the mentaldamage compensation of the parents.Through collation and induction of legal issues involved in cases of “wrongful birth”,combining with related rules of Chinese law, the thesis is helpful in the integrity of such casesin legal system and judicial practice in china.