Research On Wrongful Birth Damages Responsibility

The concept of wrongful birth initially originated in the United States, refers that the medical did not diagnose the potential congenital defect of the fetus with fault or did not fulfill a reasonable attention obligation so make it lose the opportunity of termination of pregnancy and led to the birth defects. Wrongful birth is between pregnant women and the medical institutions that took antenatal examination. Apparently, wrongful birth case is a kind of medical dispute due to negligence. In the period of contract between the pregnant women and the medical institutions, if medical staffs deliberately pregnant women paramedics did not informed of the infant’s defects deliberately, which makes the medical staffs’ behavior illegal, this situation is not within the scope of our discussion.With the development of science and technology, the hospital with professional knowledge of fetal health care can foresee the fetus within a certain scope through antenatal examination. Citizens have the rights to learn the truth and to choose the maternal and infant health care in our country, this right is absolute right, so that medical staff can’t infringe arbitrarily. Otherwise while the infant is birth defects, the medical institutions still suppose to be responsibility for heaving not informed and given medical guidance timelyThe main text is composed by four parts. The first part generalizes the concept of wrongful birth, meanwhile, compares and analyzes wrongful life, wrongful pregnancy and medical accident for meeting the demands of the article analysis. It helps us know the phenomenon of wrongful birth.The second part further emphasize the significance to establish the civil liability of wrongful cases from the aspects of necessity and feasibility analysis of such cases. The wrongful birth of defect infants, as a result of the physician’s omission, newborn baby brings unnecessary burdens of the family. The cost of treatment for birth defects, disability rehabilitation and education is a lot of money, what’s more, the mortal damage for the families. The infants’parents must and need ask medical indemnity for the negligent medical institution. Wrongful birth cases raise ethical thinking. There is a view that a newborn baby brings hope and vitality to the family, we can’t deny its value because of the defeats. However, value is subject to object, if a newborn baby brings family material loss and mental anguish, this is in fact the damage for the family. To establish the civil liability of wrongful birth damages is the need of justice.The third part conclude that the basis of claim right can be liability for breach of contract or tort liability in wrongful birth cases through analysis. When the basis of claim right of wrongful birth get concurrent, but it’s more beneficial to the rights of the parties through investigating those tort liability. There is an antenatal examination contract between pregnant women and medical institution, the institution infringe the obligation of attention and informing. Because of the negligence or other faults,the institution didn’t inform the relative person that the fetus is birth defects in the contract led to birth defects. In China, contract law adopt no-fault imputation principle, because of the attention of the prescriptions on the breach of contract and inform obligation, within the legal framework in our country, there is no doubt to be liable for breach of contract. According to the provisions of article 2 of the regulations on the medical accident treatment, medical institutions and medical personnel in medical activities, in violation of the medical and health management regulations of laws, administrative regulations, department and diagnosis and treatment to nurse standard, conventional, error causes the accident that personal injury patients, called the medical accident, is a kind of medical tort. According to "General Principles of the Civil Law" and "Tort Liability Law" regulation, in the process of medical treatment, medical institution and its medical staff caused personal injury patients but did not constitute a medical accident damage or other damage because of intentionally or negligently, should belong to the that is medical tort. As a result, the Act of Tort Liability of medical damage liability is the principle of fault liability. Improper birth suit is belongs to the scope of medical infringement, should be treated with the adjustment of the existing tort rules in China. Therefore, in our country’s legal framework, the defects parents enjoy not only the right claim for compensation for contract, but also the right to claim for tort compensation. Based on the claim happened. However, under the legal framework in our country, the victim requests the tort damage compensation is more advantageous to maintain their own rights and interests.The fourth part is about the scope and amount of damages compensation, which is the essence of the article. One of tort liability’s important function is to fill up the victim’s damage. In the final part of this article, the article first analyzes the subject of responsibility of wrongful birth damages compensation suit, determine the subject of responsibility is a medical institution and the reference doctors are the employee of the medical institution; At the same time the infant’s parents are the right subject. The difference of tort and default lawsuit mainly reflects on the compensation for mental damage. This paper combined with actual situation in our country, specific analyzes and determines the compensation scope includes medical treatment, special care, special education and mental damage. Although that is controversial about the scope of compensation, especially the mental damage compensation. But this paper argues that the compensation is necessary for the parties and has practical significance. Parents’mental damage compensation for defects will not hurt the defects of human dignity instead, the compensation is favor of maintain the interests of the parents and defects.