Study On Tort Damages Of Wrongful Birth

Wrongful-birth action is a claim brought by parents against doctors for failing to examine the risk of their having a child with injuries or defects and inform the mother during her pregnancy. Those cases raise philosophical questions as well as evaluation of damages and liability questions and are decided differently by courts of different countries. As the topic in issue is so controversial and broad one could write a book about it,this paper shall concentrate on several key questions epitomized by a more overview description of verdicts of Chinese courts. The questions which arise here are: “Who has the right to claim for damages? How to define damage,negligence and causation between damage and negligence? And what is the scope of compensation?”Analysis of legal dogmatics, case law and comparative law are applied to this paper and some conclusions are presented as below. Parents undoubtedly have the right to claim for damages and in exceptional circumstances child should be allowed to have the same right. The definition of damage is the loss of interests resulted from violation of interest of being informed and decided whether or not to give a birth. This interest shall be protected by tort law. Because of the failure of doctors to advise prospectively about the risks of parents’ having a child with birth defects, court shall grant the compensation for the maintenance of child and for the pain of mother during the pregnancy,including the immaterial damages.