A Study On The Issues Of Compensation To Damages Based On "Wrongful Birth"

Fertility is the instinct of human beings,and the advanced life science and medical technology has helped us make good choice so as to increase the chances for a healthy pregnancy and a healthy baby.Nevertheless,in medical practice the application of prenatal test,a high-tech medical technology,also brings new issues to an unprepared legal system.Due to the error diagnosis of medical service provider in detecting fetus with deformity and severe disability in prenatal examination,the tested might not be able to exercise their rights to make decisions on abortion of the fetus.As a result the family of the deformed or disabled child usually sue the medical service provider for its mistake and claim for compensation,resulting in assumpsit for wrongful birth.Since the current civil legal system does not include specific provisions dealing with wrongful birth related disputes while there are also diverse and inconsistent legal practices tackling with the issue,there is a need for a discussion on the three controversial issues of wrongful birth.The article consists of five sections.It analyzes issues of wrongful birth through methods including case analysis,comparative law study and empirical study.Section 1 bases its discussion on a particular case,introducing and summarizing the three controversial issues of wrongful birth.Section 2 is an overview of the definition of wrongful birth.The section first suggests the origin of the definition of wrongful birth and lays the foundation for further discussion by clarifying on the concept of “wrongful birth” through discriminating it from the related concepts including “wrongful life”,“wrongful pregnancy” and “medical negligence”.Section 3.4.5analyzes the focuses of the controversial issues in legal practices related to “wrongful birth”.Section 4 focuses on the analysis of legal basis for wrongful birth from the perspective of breach of contract,tort and the concurrence of the two legal basis for civil liabilities.The section further concludes on an appropriate approach to conceive the legal basis for wrongful birth claims and to distribute burden of proof in the related disputes.Section 4 analyzes the eligibility of the wrongfully delivered child and his or her parents as the subject of the compensation claims and comes up with conclusion on eligible subject for compensation.Section 5 at the end defines the scope of compensation claims with regard to pecuniary loss and non-pecuniary loss.