A Thesis On The Damage Compensation For Wrongful Birth

Wrongful birth action involves a claim of negligent failure to provide adequate medical guidance preventing the parents from discovering the parents from making an informed decision on whether to terminate the pregnancy. Even if the parents can claim the liability for breach of contract, the compensation for spiritual damages will be difficult to claim for by the parents. Based on the value position of the birth of a child in law, the system boundary of wrongful birth suit is certain and should not be chosen arbitrarily. Because the suit is caused by infringing rights of parents of disable children, the suit of wrongful birth should be enjoyed by the parents who have the disable children. Therefore, wrongful birth suit is totally different with system of the damage compensation before birth that is enjoyed by children with disabilities. Wrongful birth suit belongs to the violation of expectation interest that parents expect to give birth to healthy children, which is irrelevant to reasons that cause the infant's disability. If claiming for the compensation of wrongful birth on the basis of liability for breaching contract, the difficulties such as the claim right and moral damage compensation will be caused; so choosing tort liability to be the basis of claim right is the legislative trends of all countries. The fifty-seventh clause of "The Tort Liability Law" in China has independent adjustment function on the issue of interest infringement, so it should be treated as the basis of application of wrongful birth suit. The birth of a disabled child is not only the judgment of value, but also the judgment of damage. Accordingly, the extent of compensation for wrongful birth suit should be reexamined.