Research On The Lawsuit Caused By The Compensation Of "Wrongful Birth"

As the development of the medical science, to choose to have a healthy baby, which means to know the actual situation of fetus in advance, under the proper instruction and inspection of the medical institutions is realistic. However, when a disabled child is born by the negligence of the medical institution, a lawsuit called wrongful birth which leads to mental and property losses will be incurred by the parents. From the history point of the lawsuit, wrongful birth is grown out of nothing. Nowadays, it is accepted by all the major countries especially in America. As the original place of wrongful born suit, America has already incorporated this kind of suit into its tort law system. Meanwhile, there is still no any detailed provisions for wrongful birth to be used for practice in our country. Therefore, under the research of overseas experience and inland research findings, to make some concrete perfecting suggestions to try this kind of cases fairly and reasonably is the major point of the article.This article is divided into the following parts:The first part is the introduction. In this section, the background of damage suit for wrongful birth is introduced including the generation and development, research summary both at home and abroad and major innovation points in this article.The second part is the overview of damage suit for wrongful birth. In this section, brief introduction and comparative studies are conducted on the definition, development history, characteristic and the value of Research. Beginning researching for original meaning of wrongful birth based on the vocabulary study of Wrongful Birth, Unplanned Children and Unwanted Children, etc in foreign literature, the precise definition of wrongful birth and damage suit for wrongful birth is confirmed and the litigation type for wrongful birth is analyzed. Then, by the study of the development history of this kind of litigation, the author analyzes the background and cause of the development from negation to affirmation for wrongful birth damage suit and then reveals the character and research value of this kind of suit.The third part is the researching review for wrongful birth damage suit at abroad. Standing on the practice of two law systems represented by America, British, Germany and France, the legislation and case law, choice of litigation and the difference of damage compensation amount are studied.The fourth part is the researching on the main problems existed in wrongful birth damage suit practiced at home. Based on the research for the practice background and general situation and the judgment documents of those specific cases, main problems are found on the following points: non-unified legislation, unclear definition of litigant, differential determination of legal responsibility, vague distribution of burden of proof, discrepant litigation outcome caused by the improper application for medical evaluation program.The fifth part is suggestions for concrete issue in practice. By comparative studies between default action and infringement action, the author proposes that the latter is more suitable for dissolution. Then, detailed perfection suggestions are introduced for each shortcomings in infringement actions in practice.