A Trial Exploration Of Compensation For Tort Damages Of “Wrongful Birth”

“Wrongful birth”action means that the medical institutions and their medical staff providing antenatal care and relevant services fail to exercise their utmost duty;do not test or diagnose the infant’s defect or fail to perform the legal obligation of telling the truth, which leads a damage compensation which raised by the parents or their baby, after giving birth to the child that they make a misconception that the baby is health. Recently, this kind of cases happen now and then. Because the law lack clear provisions, the trial standards are not consistent, the result of the trial is not uniform. The argue is mainly embodied the responsibility constitution of tort damage compensation, the right subject and the extent of compensation.The establishment of tort damage compensation responsibility of “wrongful birth”also needs to satisfy four elements of general tort liability. In the cases of“wrongful birth”, as the omission that the medical staff breaching the legal responsibility embody the illegality, and this illegality encroaches parents’ right to make informed choices giving birth. So they lost the choice of interruption of pregnancy, it leads the property interests loss and non-property interests loss. There exists causation between them. Meanwhile, the doctrine of liability fixation of the common medical tort cases is fault liability doctrine, it also needs to observe the fault under the tort damage compensation responsibility of “wrongful birth”, namely,judging if they breach the high duty of care considering the medical standards at that time. When satisfying the above-mentioned elements, it constitutes the tort damage compensation responsibility of “wrongful birth”.In the cases of “wrongful birth”, there is controversial that who can get the compensation. Now, most regions and countries still admit the status of the subject of claims; on the one hand, whatever based on tort or breachment of contract, the mother is the the subject of claims; on the other hand, the father who also has the right of the informed choices giving birth can also raise an action of tort about the fact of the impairment of right. The contradiction is mainly about if the child can bethe subject of claims. Although the baby can advocate the compensation on her lost during the fetal period, in this kind of case, to the child, it did not suffer any damage,and the baby is the direct benefited of the compensation, not admitting the claim does not breach justice. So the baby is not the proper subject of claims.What kind of fees that the parents can request, namely, the scope of the compensation still exists several judicial decisions. According to the causal relation theory of responsibility, the compensation include mother’s medical fees, the alimony of the defect baby, including the common alimony and the special alimony.To some special disability compensation, if the baby was born disability, not because of the negligent medical act, they can not get the compensation. At the same time,the born of the defect baby does not the expectation of the parents, the “wrongful birth”also make the parents suffer a heavy blow, the mind-pain maybe very serious,so the party can request the spiritual damage compensation. But in the specific cases,it also needs to combine with the concrete situation and the principles, such as causation, to as certain and limit the scope of the tort damage compensation fairly and reasonably.