The Legal Study Of Wrongful Birth Tort Liability

With the continuous development of prenatal screening technology to ensure that pregnant women can give birth to a healthy child, more will choose to prenatal care, in order to obtain the relevant information of the fetus. However, medical institutions responsible for the pregnancy test because of its own negligence failed to find a congenital defect of the fetus or fetal birth defects found, although without the obligation to make a reasonable lead parents to give birth to children with disabilities, for check-husband sued for medical institutions liability, which have led to a "wrongful birth" case, the first case of this type in the United States, and then began to appear in other countries and regions in the world, but appeared later in the country. Since the birth of improper produce, it sparked widespread controversy, mainly around whether to support the demands of parents of disabled children would disparage human dignity, the right to request the plaintiff parents party basis, the scope of compensation and the amount of compensation is determined and so on. These problems have not been solved so far have not formed a unified point of view, plus the provision of legislation in this area is less, almost no cases specifically applicable to such special rules, resulting in the emergence of co-practice different sentence of embarrassment, so the status quo is not conducive to the protection of the fetus parents, will lead to the award of public suspicion of impartiality and undermine the unity and authority of the law.To solve these problems, this paper many scholars in reference books and papers back to reveal the meaning of wrongful birth as the starting point, compared with a similar concept wrongful birth, then lists three typical cases, which led to the birth of the case for improper legal thinking, on this basis, combining theory and controversial judicial practice of improper born, pointed out that under our current legal framework should give parents of children with congenital disabilities tort remedy, in order to fully protect the legitimate rights and interests of victims of their parents. Then this paper discusses in detail the wrongful birth Tort Liability Principles and Elements from two aspects, in order to allow the request of parents of children with disabilities can be realized, the last part of the article also made to determine the scope of compensation wrongful birth and the amount of compensation recommendations. Of course, the risk-based medical technology, there are still many problems humanity is not yet known, so as to achieve fairness and justice of the law, to balance the doctor-patient relationship, the paper also put forward defenses of medical institutions, with a view to a fair and reasonable settlement of such disputes of our theoretical research and judicial practice help.