Research On Compensation For Wrongful Birth In China

Generally speaking,parents often choose to have prenatal screening and prenatal examination to know whether they have any circumstance unsuitable for giving birth or information about their fetus' developmental status,so as to make correct decision on giving birth.However,the above-mentioned screening test cannot 100% avoid or eliminate the birth of defective babies.When the physician reports wrong fetal health due to the inspection errors,which causes the parents to trust the information and produce imperfect babies,the damage suit lodged by the parents is known as suit of “wrongful birth”.This suit originated in Anglo-American law,and has become common in China and other judicial regions.However,the handling of this suit involves legal policy,social concept,morality and ethics,medical risk,etc.,and arouses extensive debates.These arguments focus on whether supporting the parents' appeals will disparage the child's dignity,what is the basis of the parents' claim right,the consequences of the damage,and the scope of the compensation.In China,the research on relevant issues of wrongful birth started late,and there is almost no specific rule applicable to such suits in legislation and judicature,as a result,the actual judgment standards vary a lot.This is not only unfavorable to the protection of the interests of the fetus and their parents,but also undermines the judicial unity and authority.Herefore,based on a lot of references and studies of judicial precedents in the past five years,the author of this paper starts with specific cases,points out the current situation and existing problems of the wrongful birth suits in China,analyzes the concept of wrongful birth suit,basis of claim right,points out that tort remedy can better protect the rights and interests of the victims.Then,the author elaborates the legal interests of victims and constituent elements of tort,and gives opinions about deviation of conception in the judicial practice.In the last part of the paper,the author focuses on solving the problem of compensation for wrongful birth and considers the uncertainties of medical behaviors.To better balance the interests of both doctors and patients,in this part,the author also expatiates on the defendable causes of medical institutions,so as to be helpful to the trial of wrongful birth suits in judicial practice.